The Supreme Court will keep mifepristone available as usual, it ruled in a Thursday order, blocking a 5th Circuit Court of Appeals ruling that would reimpose in-person dispensing requirements and prevent the drug from being mailed.
The majority was unsigned. Justices Samuel Alito and Clarence Thomas wrote separate dissents.
Thomas staked his dissent on the Comstock Act, a 19th century anti-obscenity law the anti-abortion movement has seized upon as it attempts to ban the mailing of mifepristone nationwide.
“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” he wrote. “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’s dissent is more scattered, first lamenting that the “unreasoned” granting of the stay undermines the Court’s decision in Dobbs.
Then he spends a lot of time venting his spleen on Danco and GenBioPro, makers of mifepristone.
“The manufacturers of the drug, including Danco and GenBioPro, are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana,” he seethed.
It is not clear how the makers of mifepristone would stop their product from being mailed into red states.
He goes to great lengths to dismiss the companies’ injury from the reimposed restrictions, waving away their change in operations and presumed loss of sales as insufficient.
“The manufacturers contend that resuming compliance with those requirements would involve inconvenient processes, such as updating prescriber agreements or adjusting pharmacy-distribution operations,” he wrote. “But without any effort to show the extent of these burdens, such inconveniences are insufficient to constitute the requisite showing of irreparable harm.”
“GenBioPro makes a passing reference to the possibility of lost sales,” he added. “But lost sales in States where abortifacients are generally illegal are not ‘irreparable injuries’ that can justify granting a stay.”
The order came down shortly after the administrative stay on the 5th Circuit’s ruling expired Thursday evening.
The reprieve for mifepristone may only be temporary; the case will reach the Supreme Court on the merits, and the court’s six right-wing justices will have their second crack at restricting the abortion drug since Dobbs.
Banning or restricting mifepristone has become the primary aim of the anti-abortion movement, as women in abortion deserts have obtained the pill through telehealth prescription and mail forwarding services. Blue states’ shield laws have, so far, thwarted red state attempts to get the providers extradited for prosecution.
Anti-abortion activists (including Alito, based on his dissent) have become increasingly furious with the Trump Food and Drug Administration, which they expected to at least unilaterally reimpose restrictions on mifepristone if not yank it from the market altogether.
“Danco and GenBioPro then filed these stay applications, and the FDA takes no position on this matter, even though it concerns the question whether an important rule that it has found to be flawed will remain in force for some unknown period of time,” Alito fumed.
Former FDA Commissioner Marty Makary, who resigned under pressure this week, had reportedly instructed the agency to slow-walk a safety review of mifepristone until after the 2026 midterms. Anti-abortion activists are hoping that his replacement will be more amenable to their aims.
“Had a great convo last night with Kyle Diamantas, the new acting FDA Commissioner,” tweeted President of the March for Life Education and Defense Fund Jennie Bradley Lichter on Wednesday. “In other words, within hours of being handed this big new job, he was on the phone with pro-life leaders — which is an encouraging sign of where his priorities lie.”
“After talking [with] him I’m optimistic that the cause of Life will get a full and fair hearing at the FDA, [including] real movement on the mifepristone safety study,” she added.
The anti-abortion movement has falsely smeared mifepristone as unsafe for years, the better to make it heavily restricted and inaccessible.
Read the order here:
This story is breaking and will be updated.
It’s actually kind of reassuring that Alito and Thomas so consistently reaffirm that, along with everyone else they hate, they really hate women.
I believed Anita Hill.
If there is anyone who knows about “profits from their criminal enterprise” it is Clarence and his ilk.
Not surprised, but everyone needs to remember - this is not FINAL and should not be seen as the SCOTUS regaining some insights into women’s rights or reproductive health. It is a political move to try to keep the Electorate from throwing more ReThugs out of office this fall. Nothing more.
Yeah, maybe not to the women they hate.