Breaking: SCOTUS keeps mifepristone available on current terms, including mailing of the abortion drug
Thomas and Alito each authored a separate dissent.
Mifepristone will continue to be available on current terms, including being able to be sent by mail and prescribed via telehealth services, while Louisiana’s lawsuit challenging the U.S. Food and Drug Administration’s 2023 rule that loosened restrictions on the drug proceeds.
The U.S. Supreme Court issued a one-paragraph order on Thursday that the U.S. Court of Appeals for the Fifth Circuit’s effort to block the 2023 rule will be stayed during the remainder of the litigation.
The decision was issued over sharp dissents from both Justices Clarence Thomas and Sam Alito.
The court held:
The stay of the Fifth Circuit’s stay of the rule means the rule remains in effect. (You have to love the law.) Mifepristone, one of the two drugs used in medication abortion, will remain available on current terms during litigation.
The requests at the high court came from Danco Laboratories, which makes Mifeprex, and GenBioPro, which makes the generic version of mifepristone.
The decision prompted a short, but stark, three-paragraph dissent from Thomas, who invoked the Comstock Act, an 1873 law, to assert that “it is a criminal offense to ship mifepristone for use in abortions.”
After describing portions of the post-Civil War vice law, Thomas called the drugmakers’ actions “crimes” or a “criminal enterprise” three times in his concluding paragraph:
Alito — who earlier granted administrative stays so that the court could consider the request — on Thursday dissented from the court’s ruling, referencing the effect of the FDA’s 2023 rule as “mail-order abortions” and criticizing the court for its “unreasoned order granting stays in this case“ — a regular (if less than ideal) practice for which he has generally been in the majority.
On Thursday, however, Alito went into great depth analyzing whether the drugmakers had shown “any imminent risk of irreparable injury.“ He concluded that “the manufacturers have failed to show that they face irreparable injury, without which this Court may not grant a stay.”
The dissent from Alito came a month after Justice Ketanji Brown Jackson, in a speech at Yale Law School, questioned the conservative majority’s treatment of irreparable harm — one of four factors in deciding whether to grant a stay — in shadow docket cases involving the Trump administration.
Had Thomas and Alito had their way on Thursday, the Fifth Circuit’s order — blocking the mailing of mifepristone nationwide by staying the FDA’s 2023 rule — would have gone into effect immediately.
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I am greatly concerned that, while the court has allowed for the continuation of mail-order access and virtual MD appointments to secure prescriptions, in the long run the court will strike down the ability of women across the nation to have mail-order access. This is a conservative court that has shown its true colors regarding women’s access to abortion via past rulings, including striking down Roe. I fear that this is simply a limited-time reprieve.
First, I wanted to respond to "irreparable harm." How can Danco not show they are irreparably harmed when they can no longer send mifrepristone through the mail? The success of the business relies on these sales.
Additionally, I want to comment on "criminal enterprise" as alluded to by Justice Thomas in his partisan dissent. How can they engage in criminal activity when this very court said that it should be left to states to regulate the woman's right to choose? As far as I know, abortion has not be ruled illegal in ALL JURISDICTIONS. The dissents press their own partisan views at the expense of a proper analysis. Wonder what effect money had on their decision?
Blessings now and forever,
Frank D. Tigue
Attorney-inactive, Award-winning Author