Revisiting abortion by mail

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NICK EICHER, HOST: It’s Tuesday, the 5th of May, glad to have you along for today’s edition of The World and Everything in It. 

Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Up first: rethinking the rules for abortion drugs.

A legal battle in Louisiana over the drug mifepristone may be headed for the Supreme Court to decide whether to bring back stronger safety measures.

The Fifth Circuit Court of Appeals late last week reinstated previous FDA rules requiring mifepristone to be dispensed in person, with a doctor, rather than by mail.

EICHER: This is the latest development in a legal and cultural battle that goes back decades about abortion pill safety.

Friday’s order by the Fifth Circuit temporarily blocked the FDA’s current rules easing abortion pill availability.

When drug manufacturers asked the Supreme Court to weigh in, Justice Samuel Alito ordered an administrative stay. 

Constitutional scholar Ilya Shapiro:

SHAPIRO: Meaning that the lower court order is put on hold for a few days, literally a few days, while the Supreme Court receives further briefing and considers whether to put in a stay pending a petition to the Supreme Court.

REICHARD: The pill cuts off the growth hormone from the uterus, starving the baby to death.

French authorities approved the drug in 1988, but it faced opposition in the United States. Eben Fowler worked for a Kansas City pharmaceutical company that later merged with Roussel Uclaf, the French company that developed mifepristone.

FOWLER: I was also in touch with some of the upper management people that I worked with, telling them that they really needed to do whatever they could do to shut the drug down, to get rid of the patent, and essentially take it out of the hands of people who could distribute it. That's, unfortunately, not what happened.

EICHER: Eventually, a rapid review led to FDA approval under President Bill Clinton. Fowler says the drug company’s guidelines for dispensing mifepristone don’t fully take into account the drug’s dangers, but they do ensure some safety measures.

FOWLER: You needed to see a doctor ahead of time, you needed to come back and see them again to make sure that you're not going to have some kind of a problem such as hemorrhaging, etc.

REICHARD: The company also recommended the drug not be used after 7 weeks of pregnancy.

But the FDA, under President Joe Biden, loosened the rules during the COVID-19 pandemic. FDA allowed mail distribution as late as ten weeks into pregnancy.

Pro-life doctors sued, saying the rules forced them to finish abortions when mail-order drugs left women in medical emergencies. But the Supreme Court ruled in 2024 the doctors lacked standing to challenge the FDA’s rules, saying the doctors did not provide sufficient evidence their conscience protections were being violated. 

Now, state governments are weighing in, saying out-of-state prescribers are undermining local pro-life protections.

Ilya Shapiro again:

SHAPIRO: So now it's Louisiana, as a state, bringing a similar challenge to its availability by mail, not having a requirement to see a physician, and other certain loosening of the regulation surrounding this medication.

EICHER: So far, the Trump administration has asked the courts to wait on a pending FDA review of mifepristone, but that review is reportedly on hold until after the midterm elections.

Kristi Hamrick is Vice President of Media and Policy for the group Students for Life:

HAMRICK: We're left with states like Louisiana going, people are dying, women and children, and no one seems to care, and our state laws that say that the pre-born are valuable from conception, those are being violated, and so we're all headed back to the Supreme Court.

REICHARD: For this week though, drug companies can continue mailing abortion drugs.

Shapiro says it serves as a pause button while the court looks into the case, not an indicator on how it might rule. He laid out two scenarios:

SHAPIRO: It could enter a stay of the lower court ruling, meaning that ruling would not be in effect, and the mifepristone would be available by mail...

EICHER: Or the court could lift the stay and allow the Fifth Circuit ruling to go into effect while the Supreme Court considers taking up a case on the merits. 

The FDA and Louisiana have until Thursday to respond, and the stay ordered by Justice Alito expires next Monday.

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