Four years after striking down Roe v. Wade, the Supreme Court has thrown abortion providers and patients a lifeline — albeit a temporary one.
The justices on Thursday extended the high court’s pause on a lower court ruling rolling back the availability of the abortion drug mifepristone. The high court’s move — which came half an hour after their self-imposed 5 p.m. deadline —indefinitely preserves online and mail-order access to the most common method of abortion while lower federal judges work through the thorny legal issues at play.
The Supreme Court’s order blocks for now the 5th Circuit Court of Appeals’ decision earlier this month that granted Louisiana’s bid to reimpose a pre-2021 requirement that patients only obtain mifepristone in-person from a physician. That means telehealth access to drugs used in more than two-thirds of abortions can continue until the 5th Circuit rules on the merits of the case — likely delaying a resolution until after the midterm election.
“The status quo that has been in place across the country for more than five years will remain the state of affairs while this legal question works its way up through the courts over the coming months,” explained Julia Kaye, a senior staff attorney with the ACLU, which submitted briefs in support of maintaining online and mail access to the pills.
The court’s majority offered no explanation for its decision, but Justices Clarence Thomas and Samuel Alito filed separate dissenting opinions.
Thomas’ dissent was particularly strident, accusing the two manufacturers of the abortion drug of seeking legal protections in order to “commit crimes.”
The companies “are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” Thomas wrote.
The conservative justice also contended that mail-order abortions are already prohibited by the Comstock Act, a long-dormant, federal law that bars delivery of any medication or instrument used to terminate a pregnancy.
The Biden administration’s Justice Department issued a memo saying Comstock could not be used to prosecute doctors who prescribe abortion pills to patients living in states with bans — an interpretation Trump’s DOJ has yet to replace.
Alito’s solo dissent accused his fellow justices of enabling “a scheme to undermine” the court’s 2022 Dobbs decision that overturned Roe and restored the ability of states to severely limit or ban abortion. He also blasted the drugmakers–Danco and GenBioPro–for seeking to evade Louisiana’s strict abortion laws, saying the companies “are obviously aware of what is going on, yet nevertheless supply the drug and reap profits from its felonious use in Louisiana.”
Alito also took a swipe at the majority for not offering a rationale for preserving access to telehealth abortions, calling the court’s order “unreasoned” and “remarkable.”
In a statement, Danco spokesperson Abby Long said the company is “confident that a review of all recent, reliable data by FDA will continue to show that Mifeprex is very safe and effective.” GenBioPro CEO Evan Masingil said he is “committed to providing our evidence-based, essential medication to all who need it.”
While the Trump administration had argued in lower courts that judges should hold off on ruling on the case until the FDA completes an internal review of the drug’s safety, the Justice Department stunned legal observers by submitting nothing to the Supreme Court prior to its decision, even as the fate of its agency’s power hung in the balance.
The Justice Department did not respond to questions about why they declined to file a brief. Many anti-abortion activists, who have been frustrated with the Trump administration’s stance in the case up to this point, interpreted that silence as a sign the government had come around to their crusade against the drugs.
Abortion opponents remain, however, unsatisfied with the Republican president who helped engineer the fall of Roe v. Wade in his first term, who they accuse of becoming complacent as the number of abortions rose nationwide — a trend largely driven by online and mail-order access to abortion pills.
In their unsigned and unexplained order, the high court’s majority effectively sided with arguments made by the two companies that make mifepristone — Danco and GenBioPro — that the high court needed to intervene in order to prevent the “regulatory chaos” the 5th Circuit’s order would have unleashed. The “grave disruption,” they contended, would not only hit abortion patients and providers but the entire health care industry, which relies on FDA regulations to be based on science rather than court orders and politics.
The Supreme Court’s action rebuffed Louisiana’s assertion that an emergency nationwide suspension of a years-old FDA policy was needed to prevent ongoing harm caused by mail-order abortions to the state’s sovereignty and the safety of its residents.
In a statement following the high court’s decision, the FDA pledged to “press forward to complete its science-based safety review” of mifepristone.
No matter what happens next in the case, abortion-rights supporters are adamant that patients can and will continue to obtain drugs online and by mail to terminate pregnancies, including in states like Louisiana with strict bans.
While some telehealth abortion providers paused their services entirely in the few days between the 5th Circuit ruling and the Supreme Court stepping in, others pivoted to only sending the second pill in the two-pill regimen — misoprostol. The drug is used around the world for abortions and can end pregnancies on its own, but has a slightly higher failure rate and worse side effects than the combination with mifepristone.
Misoprostol is more difficult to ban or restrict because it is used for an array of other purposes, including treating ulcers and stopping hemorrhages.
Thousands of people around the country also already have abortion pills on hand that they have ordered over the last few years to prepare for a future unplanned pregnancy — a practice called “advance provision” that the FDA opposes.
“Whenever there is a big political decision or big ruling, we see an uptick in requests for advanced provision,” said Angel Foster, a doctor and co-founder of The Massachusetts Medication Abortion Access Project, which prescribes and sends abortion pills to patients in all 50 states regardless of local bans. “It happened after the [2024] presidential election results. It happened after the inauguration. And it happened after [the 5th Circuit ruling].”
In addition to doctors working in the 22 states with shield laws that protect them from prosecution if they prescribe abortion pills across state lines, there are also underground mutual aid groups that have vowed to continue supplying patients with both mifepristone and misoprostol regardless of state or federal restrictions. These networks, which obtain the drugs from overseas suppliers, have operated outside the law since Roe was overturned.
Even if every state challenge to telehealth abortions ultimately fails, conservative activists have other irons in the fire, including state and federal legislation and pressure campaigns directed at the FDA, EPA and DOJ to restrict the drugs.
“There is certainly a multi pronged attempt to interfere with access to mifepristone, and potentially misoprostol in the future, in order to further an ideological perspective about reproductive health care,” said Molly Meegan, the chief legal officer for the American College of Obstetricians and Gynecologists, which is supporting the drugmakers in the Louisiana case. “I expect it to continue.”
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