As courts deliberate, abortions continue arriving by mail

The nation’s highest court on Thursday evening granted a reprieve to abortion drug makers, issuing a stay that allows sellers to continue shipping the drugs directly to women—for now.

The decision marks the latest update in a back-and-forth policy and legal battle that began in 2021. Although Thursday’s ruling allows sellers to deliver mifepristone directly to women again while the case plays out in lower courts, even abortion advocates recognize that the decision is not a final word on mail-order abortions. Pro-lifers hope the legal system will agree that the current Food and Drug Administration policy infringes on state laws and endangers women. Some pro-life leaders are looking to new leadership at the FDA as another possible avenue to restore protections.

The outcome of the case is expected to determine whether tens of thousands of abortion pills can continue to be prescribed via telehealth. Most abortions performed in the United States today are chemical abortions, and about a quarter of all abortions are provided through telehealth, according to the pro-abortion Society of Family Planning. The Guttmacher Institute reported the number of mail-order abortion drugs being shipped into pro-life states rose from about 74,000 in 2024 to 91,000 last year. States with laws intended to protect unborn babies have limited means to stop the drugs from crossing their borders.

Notwithstanding the stay issued this week, the case could still eventually return to the Supreme Court for a final ruling. For now, the 5th U.S. Circuit Court of Appeals will weigh the merits of the case, which involve whether the FDA policy is undermining state pro-life laws.

The circumstances leading to the case began in 2021, when the FDA under the Biden administration removed protections that required medical providers to see a woman in-person before prescribing mifepristone. The agency made the change permanent in 2023. Under the new rule, women in the United States were able to obtain abortion pills by mail without ever seeing a doctor.

Then, last October, the state of Louisiana and plaintiff Rosalie Markezich sued the FDA over its policy, arguing the rule infringes on states’ ability to enforce their pro-life laws. They also argued that the lax safety precautions enable abusers to purchase the drugs online and force or coerce women into having unwanted abortions, as Markezich’s former boyfriend did to her.

On May 1 this year, the 5th U.S. Circuit Court of Appeals temporarily reinstated the pre-2021 in-person dispensing requirement for mifepristone—the first time in five years where mail-order abortions were again prohibited under FDA rules. The next day, mifepristone manufacturers Danco Laboratories and GenBioPro asked the Supreme Court to pause the circuit court’s order. The two companies, which produce only mifepristone, both claimed that stopping mail-order abortions would harm them financially. Their websites direct women to online retailers that openly sell the drugs even after FDA guidelines’ recommendations of 10 weeks of pregnancy.

“Danco and GenBioPro both significantly profit from the mailing of these drugs,” Alliance Defending Freedom senior counsel Erik Baptist said in an interview. “Under the FDA’s regulatory regime, if you fail to police your prescribers, you then lose your ability to sell that drug. Full stop.”

The Supreme Court on May 4 issued a one-week stay that it then extended by three days before handing down its ruling Thursday. The majority decision did not state which and how many justices voted to grant the stay, but Justices Clarence Thomas and Samuel Alito both wrote dissenting opinions.

In his dissent, Alito said that neither company adequately explained how it would be irreparably harmed by the lower court’s order, since both companies had successfully operated before the drugs were dispensed via telemedicine. “Without any current indication that the FDA plans to resume enforcing the in-person-dispensing requirement, there is no reason to believe that the manufacturers could not continue their current distribution practices,” he wrote.

In addition, federal law already makes it illegal for anyone to ship mifepristone, Thomas wrote in his dissent. He said the drugmakers are in violation of the Comstock Act, which criminalizes mailing materials or devices used to cause an abortion. “They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes,” he wrote.

Alito agreed, saying that lost profits from a criminal enterprise do not qualify as irreparable injuries that justify granting a stay. “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization,” Alito wrote. While some states responded to the 2022 decision by removing additional safeguards, others like Louisiana enacted pro-life laws. “Louisiana’s efforts have been thwarted by certain medical providers, private organizations, and states that abhor laws like Louisiana’s and seek to undermine their enforcement,” Alito wrote.

Under the FDA’s loose mifepristone policy, the number of abortions performed per month in Louisiana skyrocketed despite the state’s protections for the unborn. So-called “shield laws” in pro-abortion states have halted attempts to bring abortionists to Louisiana and other pro-life states to face prosecution for illegally shipping abortion pills across state lines. “This scheme would not have been possible under FDA regulations had the federal government not taken steps in 2021 and 2023 to facilitate mail-order abortions,” Alito wrote.

Ahead of the Supreme Court’s decision, a coalition of 23 Republican attorneys general wrote to the court urging the justices to uphold the in-person dispensing requirement. More than 100 Republican lawmakers also filed a brief in support of Louisiana’s lawsuit. Meanwhile, Democratic attorneys general and lawmakers filed briefs backing the drugmakers, arguing that ending mail-order abortions would interfere with their own ability to promote and enable abortion.

“They say you are infringing on the access of women in pro-abortion states,” said Sarah Zagorski, a spokeswoman for Americans United for Life. “The need for safety of young girls who have been harmed by these drugs, as well as women across the country, supersedes the priority of access.”

Pro-lifers have questioned the safety of the abortion drug mifepristone. Last year, the Ethics and Public Policy Center published a study estimating that the rate of serious complications women experience after taking mifepristone could be much higher than the drug’s warning label indicates.

Following the study, pro-life leaders and lawmakers urged the FDA to conduct its own safety review of mifepristone. The agency admitted that it lacked sufficient evidence to prove mifepristone’s safety when it made its policy change in 2023, and it said it would review the data. That review has yet to materialize, and last month a Louisiana judge paused the state’s case to give the federal government time to perform its study.

Many pro-lifers have grown frustrated with President Donald Trump’s administration for failing to prioritize the review. “There’s been very reasonable concerns that have been expressed from conservatives across the country as to why the Trump FDA and [Department of Justice] is allowing this wild, wild West of abortion policy to continue forward,” said Students for Life of America President Kristan Hawkins.

Much of the frustration regarding the elusive review fell on former FDA Commissioner Marty Makary, and Susan B. Anthony Pro-Life America even called for his removal in December. Earlier this week, Makary stepped down from his position and Deputy Commissioner Kyle Diamantas temporarily took his place. The Trump administration refused to comment directly on why Makary left his position, though some reports suggested he was involved in multiple disputes with the administration.

A spokesman for the U.S. Department of Health and Human Services said Diamantas is committed to Trump’s pro-life and pro-family agenda. Multiple pro-life leaders say they spoke with Diamantas and urged him to prioritize reviewing mifepristone. Following the Supreme Court’s decision, the FDA posted on X that it would provide updates about the review.

As the case heads back to the circuit court, pro-lifers are pressing forward with their fight against the abortion pill. “I do think there is hope that common sense will prevail,” Hawkins told WORLD. “Every day that this stay holds on, babies will die.”