Supreme Court Blocks Fifth Circuit Ruling on Mifepristone Telemedicine Access

The U.S. Supreme Court on Tuesday evening granted a stay requested by mifepristone manufacturers, temporarily preserving access to the abortion medication via telemedicine under a 2023 FDA regulation. The order came after the expiration of an administrative stay previously extended by Justice Samuel Alito.

Justices Thomas and Alito each filed dissents, with no other recorded votes. The order in Danco Laboratories v. Louisiana halts the Fifth Circuit’s ruling pending appeal and any potential petition for certiorari, meaning the case will likely return to the Court, possibly as early as next term.

Why the Supreme Court Intervened

The stay was issued after the Fifth Circuit blocked a federal regulation—a move the manufacturers argued was based on flawed legal reasoning. The manufacturers also asserted a strong likelihood of success on the merits, citing two key factors in their favor:

• The Fifth Circuit’s order blocked a federal regulation.
• The manufacturers presented a compelling case for standing and likelihood of prevailing.

However, Justices Thomas and Alito raised concerns in their dissents, questioning whether the manufacturers had demonstrated irreparable harm. Their skepticism centered on the lack of federal government intervention and the existing legal constraints under the Comstock Act, which prohibits mailing abortifacients.

Federal Government’s Role in the Case

Notably, the federal government did not file a brief supporting the manufacturers or request a stay from the Court. This absence led the justices to question whether the manufacturers alone could establish irreparable harm. As one analysis noted, the federal government is not obligated to defend every agency regulation, even against questionable court rulings.

This is not the first instance where the FDA has declined to appeal a court decision. For example, in American Association of Pediatrics v. FDA, the agency dropped its appeal after a district court accepted a questionable standing claim, forcing stricter regulations on vaping products.

Justices Thomas and Alito’s Dissenting Arguments

In their dissents, Justices Thomas and Alito argued that the manufacturers’ claims of irreparable harm—such as reduced sales and restricted access in certain states—were insufficient. Justice Thomas specifically highlighted the Comstock Act, which already prohibits mailing abortifacients, suggesting the manufacturers were essentially seeking to protect profits from what he termed a "criminal enterprise."