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The U.S. Supreme Court ruled Thursday that abortion-inducing drugs may remain available to women and girls through pharmacies and the mail without any in-person healthcare visit, while the case continues in the lower courts.
Justices Samuel Alito and Clarence Thomas dissented from the decision.
The Court’s order maintains a block on a ruling by the U.S. Court of Appeals for the 5th Circuit, which had prohibited the mailing of mifepristone, one of two drugs used to perform an at-home abortion.
Alito temporarily placed a hold on the lower court’s order last week to allow the entire Court to weigh the emergency appeal by two drug companies, Danco and GenBioPro, that manufacture mifepristone and claimed they were harmed by the ruling.
As SCOTUSblog noted, Alito first gave a deadline of 5:00 p.m. EDT Monday for the temporary hold, and then extended it to 5:00 p.m. Thursday. The Court’s order today now extends that hold again while the case is litigated in the lower courts.
The State of Louisiana filed a lawsuit in October with the aim of rescinding the pro-abortion Biden administration’s policy of allowing abortion pills to be mailed directly to women and girls without an in-person health visit. With this policy, Louisiana argued that it could not maintain its ban on abortions – a law passed in its legislature and signed by the governor – because women and girls were performing their own abortions at home and in school with drugs received in the mail from other states.
In his dissent, Alito, citing the Comstock Act, which bans use of the mail system to ship drugs used for abortion, agreed with Louisiana.
He observed as well that the drug companies “are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise.”
“They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes,” the justice asserted.
“The Court’s unreasoned order granting stays in this case is remarkable,” Alito continued, writing that “[w]hat is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization … which restored the right of each State to decide how to regulate abortions within its borders … 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 also acknowledged that, currently, there is no indication “that the FDA plans to resume enforcing the in-person dispensing requirement.”
The American Association of Pro-Life OBGYNs (AAPLOG) posted its reaction to the ruling on social media.
“Mail-order abortions are bad for women’s health, an abusive tool for predators, and lethal for our preborn patients,” AAPLOG stated. “Today’s decision from the U.S. Supreme Court sends a clear message to the American public: the profits of the abortion industry and unregulated abortion have taken priority over the health and safety of our patients.”
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