Supreme Court allows abortion pill to be distributed by mail
by Stephen Dinan · The Washington TimesThe Supreme Court on Thursday allowed the abortion pill to remain available by telehealth, meaning it can be prescribed remotely and delivered by mail — even into states where abortion is restricted.
A lower court had ruled two weeks ago that the Food and Drug Administration likely erred in its 2023 decision allowing mifepristone, a key ingredient in the pill, to be prescribed during virtual doctor’s visits and delivered by mail. The justices put that ruling on hold, allowing access to the pill by mail to continue while the case develops further.
Their action defuses what could have been a potent political issue for Democrats ahead of the midterm congressional elections in November.
The high court didn’t explain its reasoning, though to win a stay, it must have agreed with the drug’s manufacturers that the lower court’s decision was wrong and that the drug companies would be injured if the justices didn’t intervene now.
Two of the court’s conservative justices, Samuel A. Alito Jr. and Clarence Thomas, filed dissents, saying the drug companies shouldn’t have had standing to bring the case before the justices.
Justice Alito also chided his colleagues for undermining their ruling from 2022, the Dobbs case, which saw the high court overturn Roe v. Wade and return the issue of abortion to the states.
“What is at stake is the perpetration of a scheme to undermine our decision in Dobbs … which restored the right of each state to decide how to regulate abortions within its borders,” he wrote.
Louisiana had challenged the 2023 FDA policy, saying it undermined the state’s abortion restrictions.
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The FDA, now under President Trump, has said it botched the decision in 2023. It is conducting a new review.
The 5th U.S. Circuit Court of Appeals this month said the policy needed to be put on hold in the meantime.
Louisiana Attorney General Liz Murrill on Thursday expressed disappointment in the justices for upending that ruling.
“It’s shocking that the Supreme Court would block this common-sense return to medically ethical practices and oversight,” Ms. Murrill said.
Democrats hailed the ruling, though they made clear they will still try to use abortion as a political issue — just as they did in the 2022 election, after Roe was overturned.
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“Medications such as mifepristone have been proven safe and effective and have been widely relied upon for decades. Today’s order preserves access for the time being, but it does not change the fact that safe access to abortions and reproductive health care remains under attack,” said Senate Minority Leader Charles E. Schumer, New York Democrat.
The Biden FDA first relaxed the rules on mailing the abortion pill in 2021, claiming the need for exceptions during the COVID-19 pandemic.
It formalized the policy in 2023, in what pro-life activists saw as a way to undermine states that imposed abortion restrictions after the end of Roe.
Those activists argue that the pill is too dangerous to be prescribed and dispensed outside of a doctor’s direct care. Pro-choice activists say that’s a subterfuge, and the real goal of pro-life activists is to hinder abortions.
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Mifepristone works by blocking progesterone, weakening the lining of the uterine wall and causing the fertilized egg to detach. Another drug, misoprostol, is then taken to force contractions that expel the egg.
As of early last year, 27% of all abortions in the U.S. were done by telehealth, fueling a rise in overall abortions nationwide.
The total increased from 1,058,650 in 2023 to 1,123,920 in 2024 to 1,126,470 in 2025, according to the Guttmacher Institute. The abortion pill, through mail or in-person pickup, now accounts for roughly two-thirds of all terminations.
That increase had dismayed pro-life advocates who had called on the Trump administration to do more to suppress the numbers. FDA Commissioner Marty Makary, who resigned this week, had become a particular target.
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Before the Supreme Court, the Trump administration was strikingly silent about the case, failing to file a brief even though the FDA was the named defendant.
That left two pharmaceutical companies that produce mifepristone, Danco Laboratories LLC and GenBioPro Inc., to defend the FDA’s 2023 policy before the justices.
They argued that the potential loss of business gave them legal standing to defend the policy.
Justice Thomas, in his dissent, said sending abortion drugs through the mail violates a portion of federal law: the Comstock Act. Justice Thomas said that meant the drug companies were claiming legal harm from something that was, in essence, a “criminal enterprise.”
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“They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes,” Justice Thomas wrote.
Abortion rights proponents decried the Trump administration for sitting out the case.
“When nationwide access to a critical abortion and miscarriage medication was on the line, the Trump administration refused to defend the FDA’s action and threw patients under the bus,” said Julia Kaye, a lawyer at the American Civil Liberties Union.
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