The U.S. Supreme Court recently granted a stay of a Fifth Circuit order suspending the illegal regulatory changes by the Food and Drug Administration (FDA) that eliminated the requirements for patients to obtain the abortion-inducing drug mifepristone in person from a qualified medical provider. For two decades, the FDA required in-person dispensing of Mifepristone, but in 2021, the Biden Administration stopped enforcing that requirement, and in 2023, it formally eliminated the requirements, based on political motivations, not on scientific research.
The Court’s order will put millions of lives in danger, both babies targeted for abortion and young mothers who are unaware of the consequences involved in undergoing such a traumatizing procedure without medical oversight.
The Biden Administration recklessly expanded the accessibility and reach of the abortion drug as a response to the fall of Roe v. Wade, which gave the states the chance to enact policies that are more in line with each state’s values. States like Louisiana want to protect both babies and mothers, but Big Abortion wants to circumvent states that value life in this way by offering the abortion drug from out-of-state and even out-of-the-country sources.
Louisiana is suing the FDA under the Administrative Procedure Act, pointing out that the removal of the in-person-dispensing requirement was arbitrary and unlawful.
The state is right. Though the Supreme Court granted the stay without written reasoning, Justices Clarence Thomas and Samuel Alito’s written dissents are illuminating and well-reasoned.
Justice Thomas focused on the fact that to mail mifepristone for use in abortions is a federal criminal offense. “The Comstock Act bans using ‘the mails’ to ship any ‘drug . . . for producing abortion.’” He put it plainly when he wrote that the drug manufacturer, “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Justice Alito wrote, “The Court’s unreasoned order granting stays in this case [was] remarkable.” He noted the framing of the case was important. The effort to expand abortion has been a coordinated affront to the rule of law in protest of Dobbs v. Jackson Women’s Health Organization.
Alito described a scheme in which medical providers and private organizations allow women in abortion-restrictive states like Louisiana to order mifepristone online, which is then mailed to them with little oversight. Then, so-called shield laws in states like New York prevent Louisiana from taking legal action against those involved. They take steps to block the extradition of out-of-state prescribers, for example.
Alito highlights the fact that the manufacturers simply had not demonstrated irreparable harm — the threshold requirement for any stay. He observed that the FDA has continued its non-enforcement posture and is unlikely to resume enforcing the in-person requirement anytime soon, meaning the Fifth Circuit’s order would have little immediate practical effect on the manufacturers.
He also echoes Justice Thomas in rejecting the manufacturers’ argument that lost sales would constitute irreparable injury, reasoning that profits derived from potentially unlawful activity are not equitable interests that a court should protect with emergency relief.
As noted in our immediate statement following this opinion, we remain hopeful that the state of Louisiana will prevail on the merits as the case makes its way back to the Supreme Court for further consideration.
Let’s continue to pray.
