Who Gets to Decide
The Supreme Court on Monday extended a short-term order that allows patients to continue to access the abortion pill mifepristone through telehealth visits while the justices deliberate over an emergency appeal. The temporary reprieve keeps access alive for now, but only because the court chose to let it breathe a little longer, extending the stay until Thursday at 5 p.m. ET. The order keeps on hold a May 1 decision from the 5th U.S. Circuit Court of Appeals that had required women to obtain the drug through in-person visits.
Justice Samuel Alito issued a temporary order last week that allowed widespread access to the drug while the court considered the case. That administrative order had been set to expire Monday evening. Instead of a clean answer, the court handed down another pause, another deadline, another reminder that access to basic medical care can be suspended by a few people in robes.
The case is the most significant involving abortion to reach the high court since the overturning of Roe v. Wade, the 1973 precedent that established a constitutional right to abortion. After the fall of Roe in 2022, many conservative states banned in-clinic abortions, which increased demand for mifepristone. The legal machinery that followed did not create stability; it created a new round of gatekeeping, with patients caught between bans, appeals, and emergency orders.
The People Caught in the Middle
Medical providers described the hours following the 5th Circuit order as some of the craziest and most chaotic they’ve experienced. That chaos came after a 5th Circuit panel of three judges, all appointed by Republican presidents, put the FDA’s rule about mifepristone on hold earlier this month, meaning patients seeking to access the drug over the weekend were suddenly required to do so with in-person visits.
Danco Laboratories, the maker of mifepristone, filed an emergency appeal on May 2, warning of the chaos. GenBioPro, which makes a generic version of the drug, filed its own appeal asserting that the 5th Circuit’s ruling risked cutting off access for patients nationwide. The drug is most often used for abortion in combination with misoprostol. Medication abortions accounted for nearly two-thirds of all abortions in the U.S. in 2023, the last year for which statistics are available.
Louisiana sued the Food and Drug Administration last year over its policy allowing telehealth access to the pill, asserting in part that the Biden-era regulation undermined its abortion ban. A federal district court in April partly sided with the state, finding that the FDA’s policy was arbitrary and capricious because the agency did not have adequate data to judge the drug’s safety, but the district court held its own decision to give FDA time to complete a review of the drug.
The Bureaucratic Trap
The FDA has eased a number of restrictions initially placed on the drug, including who can prescribe it, how it is dispensed and what kinds of safety complications must be reported. Despite those determinations, abortion opponents have been challenging the safety of mifepristone for more than 25 years. They have filed a series of petitions and lawsuits against the agency, generally alleging that it violated federal law by overlooking safety issues with the pill.
In the current dispute, mainstream medical groups, the pharmaceutical industry and Democratic members of Congress have weighed in cautioning the court against limiting access to the drug. Pharmaceutical companies said a ruling for abortion opponents would upend the drug approval process. The FDA’s rules, the courts’ stays, and the states’ bans all collide here, with patients left to navigate whatever the latest order says before the next one arrives.
President Donald Trump’s administration has been unusually quiet at the Supreme Court. It declined to file a written brief recommending what the court should do, even though federal regulations are at issue. The case puts Trump’s Republican administration in a difficult place. Trump has relied on the political support of anti-abortion groups but has also seen ballot question and poll results that show Americans generally support abortion rights. Both sides took the silence as an implicit endorsement of the appellate ruling.
The current dispute is similar to one that reached the court three years ago. Lower courts then also sought to restrict access to mifepristone in a case brought by physicians who oppose abortion. The Supreme Court blocked the 5th Circuit ruling from taking effect over the dissenting votes of Alito and Justice Clarence Thomas. Then, in 2024, the high court unanimously dismissed the doctors’ suit, reasoning they did not have the legal right, or standing, to sue.
Alito is both the justice in charge of handling emergency appeals from Louisiana and the author of the 2022 decision that declared abortion is not a constitutional right and returned the issue to the states. The same legal architecture that stripped away a constitutional right now manages the fallout through emergency orders and temporary stays, while the people who need the drug are left waiting for the next deadline.