Supreme Court temporarily preserves online abortion pill sales

Louisiana in October sued the FDA over its decision in 2023 to allow doctors to prescribe mifepristone via telehealth and send abortion pills through the mail. The FDA’s decision undid restrictions mandating in-person screening before and after dispensing the pill.

Louisiana Attorney General Liz Murrill argued in the case that the FDA’s removal of the in-person requirement harmed her state, along with the other 12 states that have outlawed elective abortion following the overturning of Roe v. Wade. 

Abortion policy experts estimate that the slight increase in the number of abortions each year in the US, reaching 1.1 million last year, is largely due to online abortion sales, including in the states that have banned elective abortions. 

Mifepristone is used in roughly two thirds of all abortions in the United States. A report last year from the anti-abortion Ethics and Public Policy Center that examined insurance claims data found that nearly 11% of women who undergo mifepristone abortions require medical care for complications.

The 5th Circuit sided with Louisiana, acknowledging that emergency room visits due to complications from at-home abortions significantly contribute to the state’s Medicaid budget, which covers health expenses for low-income residents. 

The 5th Circuit opinion, authored by Trump-appointed Judge Stuart Kyle Duncan, agreed with Louisiana and said the state has “suffering irreparable harm” because being able to obtain the pills online effectively nullifies state law prohibiting elective abortion.  

Alito issued his temporary pause on the 5th Circuit opinion last week after the two pharmaceutical companies that make mifepristone, Danco Laboratories and GenBioPro, filed emergency petitions with the Supreme Court.

The pharmaceutical companies argued that the appeals court ruling “injects immediate confusion and upheaval into highly time-sensitive medical decisions.” 

The Court’s decision is likely complicated by the precedent the justices set last year regarding universal injunctions,  in which judges at lower-court levels block federal policies for everyone rather than just the plaintiffs involved in the case.

Last year, the Court ruled in the case Trump v. Casa that federal district courts and Circuit Courts of Appeals do not have the constitutional authority to issue nationwide injunctions. 

The Supreme Court in 2024 upheld the FDA’s regulations allowing mifepristone to be prescribed online, unanimously ruling that the doctor’s group that sued the FDA, the Alliance for Hippocratic Medicine, did not have proper standing to file the legal challenge in the first instance.

But during oral arguments in the 2024 case, conservative justices appeared sympathetic to the arguments from the doctors group, signalling that Louisiana’s case against the Trump administration might have a chance should the full case be argued before the Supreme Court next term. 

The Trump administration through the Department of Justice has remained silent during the legal proceedings thus far, not filing briefs or making statements in support of the FDA’s 2023 decision. 

Social conservatives in Congress have increasingly put pressure on the Trump administration and FDA Commissioner Dr. Marty Makary to re-institute in-person screening requirements for mifepristone. 

Makary and Health and Human Services Secretary Robert F. Kennedy Jr. each promised during their Senate confirmation hearings that the agency would be conducting a safety review of mifepristone following the change in prescribing guidelines.