Supreme Court puts hold on ruling that would block mailing of abortion pills

WASHINGTON— The Supreme Court took the first step Monday to consider anti-abortion challenges to drugs that have been widely used for 25 years to end early pregnancies.

The justices moved quickly to put on hold an appeals court decision that would have blocked abortion pills from being mailed nationwide. Judge Samuel A. Alito issued a temporary “administrative stay” until May 11.

Three years ago, the court blocked a similar challenge to abortion pills, ruling that anti-abortion doctors need not sue over drugs they do not use or prescribe.

Last year, Louisiana state attorneys filed a lawsuit arguing that the state’s abortion ban would be defeated if women could obtain abortion pills by mail after consulting a doctor online.

They questioned federal regulation that allows doctors to prescribe medications without seeing patients in person.

On Friday evening, the conservative U.S. 5th Circuit Court of Appeals in New Orleans shocked abortion rights advocates by first ruling that this claim was likely to succeed and then immediately enforcing its orders.

Judge Kyle Duncan, a President Trump appointee, said the Food and Drug Administration “failed to adequately investigate whether remote prescribing of mifepristone is safe.”

He also said women could suffer “irreparable harm” if these mail-order prescriptions are allowed to continue.

If approved, the decision would extend far beyond Louisiana, making it illegal for women in California and other states to buy the pills from a pharmacy or by mail unless they see a doctor first.

The legal dispute could put the Trump administration in an uncomfortable position. In response to abortion critics, the FDA agreed to review the safety of prescribing these commonly used pills without having to go to a doctor’s office.

The review is unlikely to be completed until after the November elections.

The 5th Circuit judges said they were not prepared to wait for the outcome of that review.

On Saturday, two mifepristone manufacturers, Danco Laboratories and GenBioPro, filed emergency motions asking the justices to block the 5th Circuit’s decision.

They said “no federal court has ever before denied FDA approval of a long-standing drug and restricted its distribution based on claims the agency rejected.”

The justices asked for a response from Louisiana by Thursday.

Mifepristone was approved as a safe and effective way to achieve early pregnancy in 2000. It is often used together with a second drug, misoprostol, which is not affected by the court’s decision.

Abortion rights advocates say that if mifepristone is not available, women can use misoprostol alone.

In recent years, the vast majority of abortions in this country are due to drug use.

Alito is in charge of the 5th Circuit’s emergency appeals, and Monday’s decision does not indicate what the court will rule.

“This decision is not final; stay tuned,” said Nancy Northup, president of the Center for Reproductive Rights. “Getting abortion pills via telehealth has become a lifesaver for women since the dismissal of Roe v. Wade. Louisiana’s attempt to restrict access is political and not based in science or medicine. Americans deserve access to this critical medicine that the FDA has approved for 25 years.”

Carol Tobias, president of National Right to Life, acknowledged that the court decision solved nothing.

“This is an interim procedural step that leaves unresolved real concerns about the safety of these drugs and the Biden administration’s FDA’s decision to recklessly lift long-standing safeguards,” he said.

California Adv. Gen. Rob Bonta, along with 21 other state prosecutors, urged the court to block the 5th Circuit’s decision.

“Telehealth has made it easier for women, especially in rural, low-income and underserved communities, to access mifepristone and receive reproductive health services,” she said. “We should be guided by science, not politics. The requirement to administer medication in person was eliminated because it was medically unnecessary, and there is still no basis for its reinstatement.”