The Supreme Court said Thursday it would allow mail orders of the abortion drug mifepristone to continue while an appeal plays out in a lawsuit brought by the state of Louisiana, according to a report by CNBC.
The court did not reveal how many of the nine justices voted to continue the stay, and the majority did not issue a written explanation for its decision. The order indefinitely extended a temporary stay the court had first issued on May 4, blocking enforcement of a 5th Circuit ruling that had imposed a nationwide ban on mailing the drug as of May 1.
Louisiana, which bans abortion in nearly all circumstances, sued the Food and Drug Administration over its 2023 decision to lift a rule requiring mifepristone to be administered in person. That rule had been in place before the Supreme Court overturned Roe v. Wade in its Dobbs decision. After a federal district court denied Louisiana's request to block mail orders while its case was pending, the state appealed to the 5th U.S. Circuit Court of Appeals, which issued the nationwide ban. Two drugmakers, Danco Laboratories and GenBioPro, then asked the Supreme Court to lift it.
Justices Clarence Thomas and Samuel Alito both filed written dissents. Thomas argued the drugmakers had not met the legal standard for interim relief and raised the Comstock Act, a 19th-century federal law, as a basis for his opposition. "I write separately to note that, as Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions," he wrote. "The Comstock Act bans using 'the mails' to ship any 'drug ... for producing abortion.'"
Thomas went further, writing that the companies "complain that the Fifth Circuit's order would reduce profits they derive from selling mifepristone." He wrote: "Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes."
Alito, in a separate dissent, called the majority's decision a "remarkable" and "unreasoned order." He wrote that what is at stake is "the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women's Health Organization ... which restored the right of each State to decide how to regulate abortions within its borders."
The case now returns to the 5th Circuit, where the underlying lawsuit over the FDA's in-person dispensing rule will continue. The stay means mail orders of mifepristone remain legal while that process moves through the courts.
