Supreme Court allows abortion pill by mail to continue — for now
by Stephen Dinan · The Washington TimesSupreme Court Justice Samuel A. Alito Jr. issued an order Monday allowing the abortion pill to continue to be available through remote appointments and mail, putting on hold an appeals court decision that had found the FDA botched its approval of the process.
Justice Alito, a George W. Bush appointee, issued what’s known as an administrative stay, which blocks a lower court decision for a week while the high court hears more briefings and considers the case more fully.
He made the move just three days after the 5th U.S. Circuit Court of Appeals’ ruling and two days after two pharmaceutical firms rushed to the high court asking the justices to intervene.
The lower court’s ruling upended abortion policy and politics, shoving the perennially thorny issue back to the front burner.
“This is a five-alarm crisis for the pro-life movement and for the GOP,” said Marjorie Dannenfelser, president of SBA Pro Life America.
At issue is mifepristone, a drug critical to medication abortions, which allows a pregnancy to be terminated without a surgical visit. The drug has been approved for decades but had traditionally required an in-person visit and distribution.
The Biden administration’s Food and Drug Administration issued new rules allowing it to be prescribed by a telehealth appointment and sent by post.
That move was seen as countering the Supreme Court’s 2022 Dobbs decision, which overturned Roe v. Wade and restored abortion policies to the purview of states — some of which have since banned the procedure.
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Louisiana, which has a strict abortion law, sued to shut down mail distribution, arguing it trampled on the state’s prerogatives.
The FDA, meanwhile, admitted the Biden approval wasn’t sufficient. It is conducting a re-review.
But the 5th Circuit said Louisiana shouldn’t have to wait for that.
“The public interest is not served by perpetuating a medical practice whose safety the agency admits was inadequately studied,” 5th Circuit Judge Stuart Kyle Duncan, a Trump appointee, wrote for the court.
He said the FDA’s approval needed to be put on hold nationwide.
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GenBioPro Inc. and Danco Laboratories LLC, the manufacturers, had rushed to the high court to delay the ruling from taking effect.
The case puts President Trump under scrutiny. His administration had largely been trying to stay out of the legal battle, urging the courts to let the FDA finish its new review.
As of early last year, 27% of all abortions in the U.S. were done by telehealth, fueling a rise in overall abortions nationwide.
The total went from 1,058,650 in 2023 to 1,123,920 in 2024 and 1,126,470 in 2025, according to the Guttmacher Institute. The abortion pill now accounts for roughly two-thirds of all terminations.
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In light of those figures, Ms. Dannenfelser on Monday called for firing FDA Commissioner Marty Makary, saying he showed “indifference” in the agency’s handling of the abortion drug.
She said women in states that have strict bans still have 90,000 abortions each year, which she said was directly attributable to mail access to chemical abortion.
“The ‘states-only’ strategy, promoted out of fear after Dobbs, is an abject failure in the face of blue states brazenly violating state sovereignty and nullifying hard-won pro-life gains,” Ms. Dannenfelser said in a statement.
She also said mailing the drug could facilitate male buyers trying to coerce women into terminating pregnancies.
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Louisiana Attorney General Liz Murrill, who challenged the FDA, mocked the pharmaceutical firms for rushing to the Supreme Court, and said she remains “confident” that the state will prevail.
“Big abortion pharma claims they need an emergency stay because they will lose massive amounts of money if they can’t kill more babies quickly and efficiently by mail without medical oversight,” said Ms. Murrill, Republican.
But The American Civil Liberties Union called Monday’s delay “a positive short-term development.”
“The Supreme Court needs to put an end to this baseless attack on our reproductive freedom, once and for all,” said ACLU lawyer Julia Kaye.
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• Stephen Dinan can be reached at sdinan@washingtontimes.com.