Abortion rights activists take part in a rally in front of the Supreme Court in Washington on March 26, 2024.
Drew Angerer | AFP | Getty Images
The Supreme Court announced Thursday that it will allow the abortion drug mifepristone to be sold by mail pending the outcome of a challenge to how it is distributed.
The Supreme Court did not say how many justices on the nine-member bench voted to continue the appeals court’s order blocking mail-order sales of mifepristone. The majority also did not issue an explanation for its decision.
Two conservative justices, Clarence Thomas and Samuel Alito, issued a written dissent to the Supreme Court’s May 4 order extending the moratorium indefinitely.
Louisiana, which bans abortion in nearly all cases, sued the Food and Drug Administration over its 2023 decision to repeal a rule requiring direct administration of mifepristone. The rule was repealed a year after the Supreme Court overturned nearly 50 years of precedent in Roe v. Wade, which established a federal constitutional right to abortion.
After a federal district court judge denied Louisiana’s request to block mail-order sales of mifepristone while the case was pending, the state appealed to the Fifth Circuit Court of Appeals, which issued a nationwide ban on mail-order sales of mifepristone on May 1 as the case progressed.
Two drug companies, Danko Laboratories and GenBioPro, then asked the Supreme Court to lift the ban on mifepristone’s mail distribution.
In his dissenting opinion, Thomas noted that both companies “complain that the Fifth Circuit’s order reduces the profits they receive from the sale of mifepristone.”
“I would deny their application because they do not meet the burden to secure interim relief,” Thomas said.
“I write separately to note that, as the State of Louisiana alleges below, it is a crime to ship mifepristone for use in abortions,” Thomas wrote. “The Comstock Act prohibits the use of the “mail” to transport “drugs intended to induce abortion.”
“Applicant is not entitled to stay an adverse court order based on lost profits from criminal conduct,” he wrote. “They cannot be irreparably harmed in any legally relevant sense by a court order that makes criminal conduct more difficult.”
In his dissenting opinion, Alito called the majority’s “unreasonable order” in allowing the case to be stayed “astounding.”
“At stake is the implementation of a plan to overturn the Dobbs v. Jackson Women’s Health Authority decision, which restored states’ right to decide how to regulate abortion within their borders,” Alito wrote.
