SCOTUS Temporarily Restores Mail-Order Access to Abortion Pills

On Friday, the U.S. Fifth Circuit Court of Appeals ruled that the U.S. Food and Drug Administration (FDA) must reinstate the in-person requirement for dispensing Mifepristone as the legal case moves through the courts. The Fifth Circuit’s decision temporarily blocked the 2023 FDA rule change that allowed Mifepristone to be distributed through the mail without an in-person medical visit. The three-judge panel of the appeals court ruled unanimously that the state of Louisiana was likely to prevail in its challenge to the pill’s 2023 deregulation adopted by Biden’s administration.

While the Fifth Circuit’s ruling was not a direct nationwide injunction, it had a practical effect nationwide because it tightened the FDA’s previously relaxed mail-order rules that apply in every state.

On Saturday, Danco Laboratories and GenBioPro, the two companies that manufacture Mifepristone, asked the U.S. Supreme Court to pause this ruling by the Fifth Circuit. The drug companies told the Justices that the appeals court order was “unprecedented.”

Justice Samuel Alito, who handles emergency requests from the Fifth Circuit, issued the administrative stay that temporarily keeps Mifepristone available by mail while the Justices fully consider the drug companies’ request. Justice Alito instructed the FDA and Louisiana to respond by 5 p.m. EDT on Thursday, May 7. The administrative stay expires on Monday, May 11, at 5 p.m. EDT.

Louisiana challenged the regulation in federal court under the Administrative Procedure Act (APA), arguing that the FDA’s justifications for remotely dispensing Mifepristone were based on flawed or nonexistent data. The lawsuit, filed in October 2025, argues that the FDA acted unlawfully under the APA by loosening Mifepristone’s safeguards without adequate scientific justification. Louisiana sought a stay of the regulation while the litigation proceeded. In response, FDA conceded it had failed to adequately study whether remotely prescribing the abortion drug is safe. Yet the FDA resisted staying the regulation as it argued it was reviewing the drug’s protocols. 

The district court then agreed that Louisiana was likely to win its challenge to the Mifepristone regulation and was suffering irreparable harm from it. However, the court declined to stay the regulation and then Louisiana appealed to the Fifth Circuit and sought a stay while the litigation proceeded.

In the Fifth Circuit’s ruling on Friday it stated, “Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is human being from the moment of conception and is, therefore, a legal person.’ Once lost, that sovereign prerogative of protecting unborn life cannot be regained by legal remedy. And because FDA ‘is entitled to sovereign immunity,’ Louisiana’s financial harms are also irremediable.”

The appeals court also stated, “In response, FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe. But the agency resisted staying the regulation, arguing it was in the midst of a comprehensive review of mifepristone protocols. The agency, however, could not say when that review might be complete and admitted it was still collecting data.”

An April 2025 study from the Ethics and Public Policy Center found that nearly 11 percent of women who take Mifepristone experience serious adverse health events, including “sepsis, infection, hemorrhage, need for blood transfusion, hospitalization, emergency room visits related to the abortion, need for a surgical abortion due to incomplete abortion, and other abortion-specific complications.”

Liberty Counsel Founder and Chairman Mat Staver said, “The Fifth Circuit Court of Appeals concluded the FDA’s mail order rule was unlawful and undermines state abortion laws. The FDA’s deregulatory actions regarding abortion drugs are destroying innocent children and harming women. The FDA should longer be allowed to violate federal law and circumvent state abortion laws by facilitating abortion pill trafficking nationwide through the mail. Chemical abortions are never safe and harm women and kill children. While the temporary administrative stay is in effect pending the responsive briefing, the U.S. Supreme Court when given the opportunity should uphold this ruling.”