Two judicial rulings over mifepristone this month have set the stage for the most important legal battle over abortion since the overturn of Roe v. Wade in 2022—and the fight has exposed the growing divide between the pro-life movement and the Trump administration.
Central to this legal battle is the Biden administration’s decision to use the pretext of the COVID pandemic to temporarily suspend the requirement that abortion pills be dispensed in person by a certified healthcare provider or clinic in 2021; the change was made permanent in 2023. This created a massive mail-order market that has sent abortion pills flowing into states with pro-life laws, triggering a series of lawsuits.
Louisiana launched a lawsuit last year challenging the Food and Drug Administration’s 2023 decision and arguing that the changes both lacked sufficient safety data and enable illegal abortions in their state, which has some of the most comprehensive pro-life protections in the country.
On May 1, the U.S. Court of Appeals for the Fifth Circuit agreed with Louisiana that the mail-order abortion pills coming across state lines were a violation of the state’s pro-life laws. The court issued a temporary stay order in State of Louisiana v. FDA, reinstating the FDA’s pre-2021 requirement. The decision paused mail-order access to abortion drugs across the country.
“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is [a] human being from the moment of conception and is, therefore, a legal person,’” the court’s decision states. The decision also notes that the FDA has admitted “it had failed to adequately study whether remotely prescribing mifepristone is safe,” and that Louisiana’s case was “strong.”
Two pharmaceutical companies that produce the abortion pill, Danco Laboratories and GenBioPro, swiftly petitioned the Supreme Court for emergency relief to restore access to the drugs, arguing that the stay would create chaos. On May 4, Justice Samuel Alito issued an administrative stay of the Fifth Circuit’s order, temporarily restoring telehealth and mail-order access until at least May 11 as the Supreme Court considers the case further.
Pro-life leaders have been exultant about the Fifth Circuit’s decision and optimistic that the Supreme Court’s administrative stay will be ultimately temporary. “Women and children suffer and state sovereignty is violated every day the FDA allows abortion drugs to flood the mail—harms that are no mere accident, but predictable outcomes of the FDA’s unscientific removal of safeguards like in-person doctor visits,” stated Marjorie Dannenfelser of Susan B. Anthony Pro-Life America.
