WASHINGTON, D.C. (LifeSiteNews) — The Supreme Court allowed the mail distribution of a widely used abortion pill to continue for now, granting the emergency requests of two manufacturers of the drug in a setback for pro-lifers.
In a brief order on Thursday, the court indefinitely extended its block on a lower court ruling that halted a Biden-era policy allowing the abortion pill mifepristone to be prescribed and delivered by mail.
The order keeps the rule in effect while litigation continues, which could last into next year. Justices Samuel Alito and Clarence Thomas dissented, according to the order, which was unsigned and did not explain the justices’ reasoning.
The Biden Food and Drug Administration (FDA) permanently ended the in-person dispensing requirement for mifepristone in 2023, as part of the administration’s “whole of government approach” to protect abortion after the reversal of Roe v. Wade.
The rule change has massively increased the use of the drug, hindering the effectiveness of pro-life laws and causing serious harm to women, according to data.
Abortionists and abortion drug networks have mailed tens of thousands of pills into pro-life states under the policy, often backed by “shield laws” in Democrat states that protect illegal abortion pill distributors from out-of-state law enforcement.
Around two-thirds of abortions in the U.S. – more than 600,000 per year – are estimated to be committed using pills.
Thomas slams abortion drug companies’ ‘criminal enterprise’
The Fifth Circuit Court of Appeals blocked the FDA policy on May 1, siding with Louisiana, which is challenging it on the grounds that it undermines the state’s pro-life protections.
Danco Laboratories and GenBioPro, pharmaceutical companies that make mifepristone, filed emergency appeals to the Supreme Court in response to the ruling. The abortion drug makers claimed that they faced “irreparable harm” due to lost revenue and “regulatory uncertainty” because of the Fifth Circuit’s decision.
Justice Thomas rebuked those arguments in his dissent, slamming the companies’ “criminal enterprise.”
“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” he wrote. “They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Thomas pointed out that mailing abortion pills violates the federal Comstock Act of 1873, which bans using the postal system to ship abortion drugs. The Biden administration decided not to enforce that law, a move that President Donald Trump has not reversed.
Alito similarly wrote that the abortion drug makers failed to show that they would suffer “irreparable injury, without which this Court may not grant a stay.”
“GenBioPro makes a passing reference to the possibility of lost sales,” he noted in his dissent. “But lost sales in States where abortifacients are generally illegal are not ‘irreparable injuries’ that can justify granting a stay.”
“The Court’s unreasoned order granting stays in this case is remarkable,” he said.
Pro-lifers blast Supreme Court decision: ‘Deeply disappointed’
Pro-life leaders condemned the Supreme Court’s order on Thursday. “We are deeply disappointed the Supreme Court will not respond to the harm occurring nationwide with mercy and stop the dangerous mail-order abortion drug regime. Today’s decision does not touch the merits of the case as it returns to the 5th Circuit,” Susan B. Anthony Pro-Life America President Marjorie Dannenfelser said.
“The Court’s action today perpetuates the Biden-era murder by mail policy that undermines the right of states to protect life and endangers women,” Family Research Council President Tony Perkins stated. “This policy, left in place by the Trump FDA has driven an estimated 21% increase in abortion.”
“Louisiana is expected to seek an expedited ruling from the 5th Circuit in defense of state law and the well-being of Louisiana citizens,” Family Research Council said.
Trump FDA under fire for allowing mail-order abortion pills
The FDA under Trump has notably declined to reverse the Biden abortion pill policy so far, prompting criticism from pro-lifers. The administration did not file a brief with the Supreme Court in the case, but it previously opposed Louisiana’s lawsuit, saying that the FDA is planning to revisit the 2023 rule after completing a review of abortion pill data.
Conservatives have slammed the agency’s lack of urgency, however, and questioned if the review is even taking place.
On Tuesday, FDA chief Marty Makary resigned after months of backlash over abortion and other issues. New Acting FDA Commissioner Kyle Diamantis reportedly told Lila Rose that he is pro-life and that “reviewing the abortion pill is a top priority for him and the administration.”
Makary’s resignation came days after a meeting between White House officials and pro-life leaders. A spokesperson for Susan B. Anthony Pro-Life America called the meeting “very productive.”
Susan B. Anthony Pro-Life America, Family Research Council, and other pro-life organizations called on the Trump administration to suspend the FDA rule and take action against abortion pills in response to Thursday’s decision.
“We urge the administration to do the right thing: Settle this case and restore in-person dispensing immediately, while moving forward on a comprehensive safety review of mifepristone without delay,” Dannenfelser said.
Fifth Circuit said FDA rule caused Louisiana ‘irreparable injury’
Louisiana is one of more than a dozen states that have banned nearly all abortions since the overturn of Roe v. Wade. The state also outlawed abortion pills as controlled substances in 2024.
A three-judge panel of Fifth Circuit had unanimously ruled that Louisiana is likely to succeed in its challenge, saying that the FDA policy “injures Louisiana by undermining its laws protecting unborn human life and also by causing it to spend Medicaid funds on emergency care for women harmed by mifepristone. Both injuries are irreparable.”
“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical [i.e., chemical] abortions and undermines its policy that ‘every unborn child is human being from the moment of conception and is, therefore, a legal person,’” the appeals court said. “Once lost, that sovereign prerogative of protecting unborn life cannot be regained by legal remedy.”
The judges added that the removal of the in-person dispensing requirement “likely lacked a basis in data and scientific literature.”
“The public interest is not served by perpetuating a medical practice whose safety the agency admits was inadequately studied. Indeed, the public interest demands the opposite,” they wrote.