After notching a generational victory in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade’s constitutional protection of abortion, anti-abortion activists took aim at their next biggest villain: mifepristone.
The movement has smeared the drug for decades, successfully larding it up with medically unnecessary restrictions. The Biden administration eliminated some of those obstacles, allowing the medication to be prescribed over telehealth and mailed to patients — all the more critical in a post-Dobbs landscape where many red states have outlawed abortion and shuttered any remaining clinics.
On Friday, a 5th Circuit Court of Appeals panel composed of three appointees of Republican presidents issued a nationwide stay, which, for 48 hours, reimposed the in-person dispensing requirements that the Biden administration had lifted. Justice Samuel Alito on Monday blocked that order for a week, at least temporarily restoring the status quo.
The case, Louisiana v. FDA, is just the latest right-wing assault on the abortion drug since Dobbs was handed down. It is indispensable to the true anti-abortion mission, which was never to leave it to the states, but to force all pregnant women in the United States to give birth.
SCOTUS’ Previous Brush with Mifepristone
FDA v. Alliance for Hippocratic Medicine made it all the way to the Supreme Court in 2024. In that case, a hastily organized group of anti-abortion doctors challenged both the lifting of regulations on mifepristone as well as the FDA’s original authorization of it in 2000.
The Court unanimously ruled that the doctors lacked standing to bring the challenge. The doctors had struggled mightily to find an injury that justified their case, given that they could consciously object to performing abortions themselves and did not prescribe the drug.
“Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue,” Justice Brett Kavanaugh wrote for the Court.
This decision overturned both the 5th Circuit and a district court decision by infamous anti-abortion Judge Matthew Kacsmaryk, who had ruled in favor of the doctor group. While a narrow, procedural ruling, Hippocratic Medicine provided a data point post-Dobbs that the justices would require at least some level of rigor in order to deliver on the anti-abortion movement’s next aim.
Still, Erin Hawley, the lead attorney for the doctors, said publicly at the time that the effort would continue with red states swapped in as the plaintiffs. That’s what’s happening now in Louisiana v. FDA and a handful of similar cases.
Red States Step In
In Louisiana, the state is still fairly reliant on attenuated injuries: that the relaxed dispensing requirements undermine its abortion ban, that its Medicaid program has allegedly had to pay for emergency room visits connected to mifepristone side effects, that it has an interest in protecting the “unborn.”
District Judge David C. Joseph, a Trump appointee, swallowed the state’s theory of standing but issued a stay, pointing to the FDA’s ongoing reexamination of the safety of the drug. Louisiana appealed to the 5th Circuit.
Ironically, the Supreme Court has become particularly vocal about nationwide rulings under the Trump administration, forbidding federal courts from issuing universal relief rather than tailored relief for the specific plaintiffs that successfully challenged the regulation. Courts have circumvented that ruling in different ways; the 5th Circuit reimposed mifepristone’s in-person dispensing requirements for the entire country over the weekend, including blue states where abortion is legal.
While Louisiana has reached the Court first, it isn’t the only red state effort to restrict mifepristone. Florida, Texas, Missouri, Kansas and Idaho have all lodged similar challenges in Florida et al. v. FDA and Missouri et al. v. FDA. In both cases, the FDA is attempting to pause or dismiss the cases pending its review of the medication. Bloomberg reported late last year that FDA Administrator Marty Makary is purposefully slow-walking the review until after the 2026 midterms, to minimize the political blowback on Republican candidates.
On the other side of the abortion wars, blue states and health providers have sued to further lift restrictions on mifepristone that have no scientific grounding. A couple of efforts — one by mifepristone manufacturer GenBioPro and one by a health care provider — argue that federal mifepristone standards preempt red state abortion bans and should make the drug available nationwide. The Center for Reproductive Rights and the ACLU, separately, are suing to force the FDA to comply with the Freedom of Information Act and provide transparency into its review of mifepristone.
Most immediately, Alito has given the FDA and the mifepristone manufacturers who have intervened in the Louisiana case until Thursday to respond. His administrative stay is set to expire on Monday.
…and as noted by Steve Vladeck, Alito put a time limit on his pause, something he appears to only do when he is personally opposed to the people asking for the pause, as a petty way harassing them.