The Supreme Court on Thursday ruled that a widely used abortion medication could continue to be prescribed by telehealth and sent to patients by mail.
Two manufacturers of mifepristone had asked the Supreme Court to intervene after the conservative U.S. Court of Appeals for the Fifth Circuit restricted access to the medication.
The Supreme Court’s brief order means that the Fifth Circuit’s decision will remain blocked, perhaps for months, while litigation continues in the lower courts. The issue could eventually return to the high court.
Justices Clarence Thomas and Samuel A. Alito Jr., the two most conservative justices, dissented.
The Fifth Circuit ruled on May 1, in response to a lawsuit filed by the State of Louisiana seeking to reimpose a requirement that patients obtain the medication only after seeing a provider in person. The F.D.A. first lifted that regulation in 2021, making it possible for people in Louisiana and other states with strict abortion bans to receive the pills through the mail.
Nearly two-thirds of abortions in the United States are now carried out with abortion pills, and about one-quarter involve telehealth, a virtual visit with a health care provider.
The Supreme Court eliminated the nationwide right to abortion in 2022, but legal battles over the issue have continued. In its lawsuit, Louisiana has asserted that the F.D.A.’s decision to remove the in-person dispensing requirement was based on inadequate or flawed data — a claim medical organizations dispute, citing more than 100 studies that have found that mifepristone is safe, and that serious complications from taking it are rare.
Liz Murrill, the state’s attorney general, said the regulations had resulted in about 1,000 illegal abortions in the state each month, and thousands of dollars in Medicaid costs to treat women harmed by mifepristone.
The manufacturers, Danco Laboratories and GenBioPro, told the justices that a ruling in Louisiana’s favor could cause broad disruptions to the pharmaceutical industry and lead to state-by-state second-guessing of all sorts of drug regulations. The companies pointed to the Supreme Court’s decision two years ago rejecting a similar challenge from anti-abortion doctors. In that case, the court unanimously held that the F.D.A.’s loosening of regulations had not caused the type of direct harm to the doctors that would give them standing to sue.
The clash over access to mifepristone has put the Trump administration in a difficult political position ahead of the midterm elections. Many of the president’s supporters oppose abortion, but restricting access is not considered a broadly winning position in many critical contests.
While Justice Department lawyers defended the F.D.A. in the lower courts, they have not said whether the administration ultimately supports allowing the pills to be mailed. Rather, administration lawyers have said that the F.D.A. is conducting a review of mifepristone’s safety and have asked the lower courts to delay Louisiana’s lawsuit until that review is complete.
But after losing in the appeals court, the administration made the unusual decision to forgo any filing at the Supreme Court, taking no position on how the justices should rule.
Medication abortion usually involves a two-drug regimen. Mifepristone blocks a hormone necessary for pregnancy to continue, followed 24 to 48 hours later by a second medication, misoprostol, which causes contractions similar to a miscarriage. The Louisiana case targets mifepristone, which the F.D.A. approved for abortion in 2000. Misoprostol, which is also used for other medical conditions, is not affected by the Fifth Circuit ruling.
In April, a district court judge in Louisiana said the state was likely to win its challenge to the regulation, but declined to pause the availability of pills by mail while the lawsuit proceeded. Instead, the judge gave the F.D.A. time to complete the safety review of mifepristone.
In its ruling earlier this month, the Fifth Circuit sided with Louisiana, echoing the state’s arguments that the F.D.A.’s regulations were “undermining its laws protecting unborn human life” and also “causing it to spend Medicaid funds on emergency care for women harmed by mifepristone,” according to the order written by Judge Stuart Kyle Duncan, a Trump appointee. He was joined by Judge Kurt D. Engelhardt, another Trump appointee, and Judge Leslie Southwick, who was appointed by President George W. Bush.
