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WASHINGTON (CN) — The Supreme Court ruled to keep medication abortions broadly accessible nationwide on Thursday, pausing new restrictions on prescribing and dispensing the pill mifepristone.
After letting their previous stay lapse briefly, the justices issued an apparent 7-2 order upholding federal regulations allowing the pill to be prescribed via telehealth and distributed by mail.
Justices Clarence Thomas, a George H.W. Bush appointee, and Samuel Alito, a George W. Bush appointee, penned separate dissenting opinions.
Thomas said the drugmakers couldn’t have been harmed by a lower court ruling putting new limits on mifepristone access because shipping the medication violated a 150-year-old morality law barring the mailing of contraceptives and abortion related materials. Federal officials have largely refused to enforce the Comstock Act of 1873 for a better part of a century.
“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” Thomas 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. And, whereas it would ‘serve the public interest’ to ‘reduc[e]’ applicants’ ‘opportunity to commit crimes,’ a stay would have the opposite effect.”
Alito criticized his colleagues for endorsing a scheme attempting to erode the court’s rulings.
“The court’s unreasoned order granting stays in this case is remarkable,” Alito wrote. “What 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.”
Alito wrote the majority opinion in Dobbs. Like Thomas, Alito dismissed the drugmakers’ injury claims.
“Lost sales in states where abortifacients are generally illegal are not ‘irreparable injuries’ that can justify granting a stay,” Alito wrote. “Our decision to grant a stay is an exercise of equitable discretion, and equity demands that profits from unlawful activity be surrendered, not protected.”
Drugmakers Danco Laboratories and GenBioPro filed an emergency appeal to the justices after Louisiana sought to restore in-person requirements for administering the drug in hopes of preventing any loopholes around the state’s near-total ban on abortion.
Medication abortion accounts for over 60% of abortions in the U.S. each year. A quarter of all abortions nationwide are provided via telehealth, which saw a two-fold increase after Roe v. Wade was overturned.
Mifepristone was approved over two decades ago for its use in ending early-stage pregnancies. Taken together with misoprostol — an ulcer medication — the regime can be used up to 10 weeks’ gestation. The pill’s safety record rivals drugs like penicillin and Viagra; it is also 14 times safer than childbirth.
The pill’s in-person dispensing requirement was first suspended due to the Covid-19 pandemic. After additional reviews, the Food and Drug Administration modified mifepristone’s safety warnings in January 2023 to permit pharmacies to dispense the drug by mail going forward.
Despite assertions from medical organizations and the drugmakers, Louisiana argues the FDA’s decision was based on inadequate or flawed data, claiming the 2023 regulations violate the Administrative Procedure Act.
The state claimed out-of-state prescribers are causing around 1,000 illegal abortions in Louisiana each month, claiming that investigatory and Medicaid costs from emergency room visits justified its lawsuit.
“In a world with the in-person dispensing requirement, Louisiana would be fully capable of enforcing its abortion laws — for any mine-run prescriber would be physically present in Louisiana and thus subject to apprehension within Louisiana’s borders,” the state wrote. “But that is not the world today.”
In emergency applications before the Supreme Court, Danco Laboratories and GenBioPro, which make abortion pills, say both arguments were based on attenuated downstream harms, too disconnected from the FDA’s 2023 regulations. And they admonished the Fifth Circuit for issuing sweeping relief far past Louisiana’s borders.
In 2023, the justices issued an emergency ruling barring a lower court from removing the popular drug from shelves nationwide. The following year, they unanimously rejected a challenge from conservative doctors seeking to add new limits on mifepristone.
Louisiana’s case closely mirrors the doctors’ challenge, which was dismissed based on lack of standing. The drugmakers urge the justices to follow a similar pattern here.
The fight over access to mifepristone comes as the U.S. faces a national shortage of obstetrician-gynecologists and rising rates of maternal mortality.
American College of Obstetricians & Gynecologists and reproductive health advocates said restricting access to mifepristone would exacerbate existing inequalities in maternal health for patients of color, with low income or disabilities, or who live in rural areas.
As abortion was legalized in the years leading up to Roe, maternal mortality among people of color dropped by 30%-40%. Researchers said they are already seeing that pattern reversing since Dobbs.
In Texas alone, researchers found a 6%-13% increase in infant mortality. Across the 13 states with abortion bans, they found an estimated 478 additional infant deaths above what would have been expected.
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