SCOTUS allows mail-order abortion drugs as lawsuit plays out

The Supreme Court issued an opinion Thursday ruling that for the time being, pregnant mothers can receive the abortion drug mifepristone without an in-person doctor visit. Women can obtain the drug via pharmacy or mail-order while a lawsuit challenging the ease-of-access to the drug makes its way through the court system. The opinion effectively blocks a 5th District U.S. Court of Appeals ruling that prohibited abortionists from shipping the drug during the ongoing litigation.

What is the history of the case? The state of Louisiana and Rosalie Markezich sued the Food and Drug Administration over its policy allowing abortionists to mail the drugs without ever seeing the patient in person. They argued that the policy enables abusers to purchase the pills online and force or coerce women into unwanted abortions. The state also said the policy infringes on states’ ability to enforce their pro-life laws that are intended to protect unborn babies from chemical abortions.

The 5th U.S. Circuit Court of Appeals on May 1 temporarily reinstated a nationwide requirement that mifepristone only be prescribed in-person. The panel of judges agreed that the FDA policy was causing harm to the state of Louisiana. One day later, mifepristone makers Danco Laboratories and GenBioPro asked the high court to pause the circuit court’s ruling. The high court late last week issued a stay effectively allowing the mail order drugs while it considered its decision, then extended that stay again on Monday. Thursday’s decision means the stay will remain in place for the duration of the case. The court did not elaborate on the reasons for its decision in its brief opinion.

Were the justices unanimous? Justices Clarence Thomas and Samuel Alito wrote dissenting opinions. Justice Thomas said shipping mifepristone constituted a violation of the Comstock Act, which prohibits the shipment of abortion drugs. He added that the pharmaceutical companies were not entitled to protection from the loss of profits that have been illegally obtained. Justice Alito argued that drugmakers Danco Laboratories and GenBioPro had not proven that they would be irreparably harmed keeping the restrictions in place.