Mifepristone Is Back In Court

Last Friday, the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, decided to shut down access to the abortion drug mifepristone, and not just for women in Louisiana, where the case before it came from. They shut it down for millions of American women who use telehealth care and mail delivery to access the drug. The case, Louisiana v. Food and Drug Administration, was promptly appealed to the Supreme Court, where it sits on the shadow docket, awaiting a decision.

An estimated 63% of all abortions in the U.S. are medication abortions, using mifepristone. It’s safe—been on the market since 2020—and effective. So, using a case out of Louisiana as a vehicle for restricting medication abortion outside of the state is tantamount to a nationwide restriction on abortion. Dobbs said it should be left up to each state to decide. “The people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” Justice Alito wrote.

And more recently, in June of 2025, the Supreme Court decided 6-3 in Trump v. CASA, that a single federal district court cannot issue a nationwide injunction. But here we are. The uber conservative Fifth Circuit wants to decide for all Americans.

Monday morning, Justice Alito entered a brief administrative stay, preventing the Louisiana rule from going into effect. This is normal when the Court is looking at an injunction situation, and I wouldn’t read much into it. The stay is in effect until May 11 to allow for briefing. Then the Court will decide, in a move that has become familiar to us, whether the injunction will remain in place pending the outcome of the litigation.

There is speculation that the Court may add the case to its docket for this term, which would mean expedited briefing and oral argument in June. A fast decision would help to resolve the issues here, rather than the unsatisfying temporary rulings that come off of that shadow docket, but one wonders if the Court is eager to tuck back into the abortion dispute ahead of the midterm elections.

The Fifth Circuit decision would restore pre-pandemic FDA requirements that patients have visits with medical providers in person to obtain mifepristone, even though there’s no evidence the drug is dangerous. It has been characterized as being safer than Tylenol, and access to it is essential for women in rural areas where in person care is no longer a reality or for women who, because they work, care for children, and so forth, can’t readily get to a doctor. The New York Times reported that, “Major medical organizations and supporters of reproductive rights have pointed to more than 100 studies that have found the pills to be safe and effective, with serious side effects rare.”

But the science doesn’t seem to matter. Before the case got to the Fifth Circuit, a district judge stayed it from proceeding while the FDA worked on a review of mifepristone’s safety. That review is happening, not because of any concerns about drug safety, but because anti-abortion groups asked for it.

This is Louisiana’s Attorney General, Liz Murrill.

She’s entitled to her point of view, as is the state of Louisiana. But under Dobbs, it’s not supposed to impose it on other states. Now, we’ll find out whether this Supreme Court is serious about legal principles and rules it has created and used in the past, or whether it just wants to end access to abortion and is willing to be hypocritical to get there.

The first time we looked at this issue was in April of 2023, when I wrote to you about Judge Matthew Kacsmaryk, well-known for his anti-abortion views before taking the bench. He tried to shut down nationwide access to the drug. Rereading that piece gives me déjà vu. Then, the Supreme Court took an easy off-ramp, ruling unanimously that the plaintiffs, who were anti-abortion doctors and associations, lacked standing to challenge the FDA's approval and regulation of mifepristone. That decision allowed them to duck the real issues in the case. And it meant, as we discussed at the time, that the issue of mifepristone access would be back in court, most likely sooner rather than later, as it now is.

So the Court has a second chance to make it far more difficult to get a medication abortion. The question is whether the Court will tell women it was only kidding when it said that each state could make its own decision and that women, by virtue of their ability to pick where they lived, could determine, at least on this limited issue, their access to medical care. When the Supreme Court reversed Roe v. Wade in the Dobbs decision, it clearly said it was leaving the question of whether and to what extent abortion should be legal up to each state.

This should be an easy case. The Fifth Circuit overstepped its bounds. But this Supreme Court has always had a “special” jurisprudence when it comes to abortion, one that lets it abandon principle to achieve the desire result. there shouldn’t be six votes on the Court for a ludicrous, result-oriented rule that would abandon clear and recently stated principles. But with this Court, you never know. This ruling, when it comes, will be very telling. Will it be another nail in the coffin, or will the Court maintain at least a semblance of fealty to the rule of law?

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We’re in this together,

Joyce