Hmmm: SCOTUS Stays Mail-Order Abortion Pill Block, Media Rejoices; Updated

The celebration didn't last long. Justice Samuel Alito threw a dash of cold water on the victory with a temporary stay on the decision. Alito appears to have acted on his own rather than refer the matter to the full court.

The media jumped all over the momentary setback. The Wall Street Journal reported that Alito "restores access to abortion pills by mail." It also notes how temporary this temporary injunction is:

Justice Samuel Alito on Monday temporarily restored full access to the abortion pill mifepristone, suspending for now a lower-court ruling that barred doctors from sending the drug through the mail without first seeing a patient in person. 

Alito’s action—which came in a pair of brief orders known as administrative stays—puts the lower court’s ruling on hold for one week and gives the Supreme Court time to consider emergency appeals from drug companies that manufacture mifepristone.

Ditto for the New York Times, albeit with slightly less emphasis on the procedural aspect of this order:

The Supreme Court on Monday restored nationwide access to a widely used abortion medication in a temporary order that will, for now, allow women to once again obtain the pill mifepristone by mail.

In a brief order, Justice Samuel A. Alito Jr. paused a lower-court ruling from Friday that had prevented abortion providers from prescribing the pills by telemedicine and shipping them to patients, causing confusion for providers and patients. The one-sentence order imposes a pause until at least May 11. He requested that the parties file briefs by Thursday, and then the full court will determine how to proceed.

And the Associated Press barely mentions the limited nature of the order in its rush to claim it as a return to normalcy:

The Supreme Court on Monday restored broad access to the abortion pill mifepristone, blocking a ruling that had threatened to upend one of the main ways abortions are provided across the nation.

The order signed by Justice Samuel Alito temporarily allows women seeking abortions to obtain the pill at pharmacies or through the mail, without an in-person visit to a doctor.

Those rules had been in effect for several years until a federal appeals court imposed new restrictions last week.

Readers of this report have to get to the final paragraph to learn that this stay will only be in effect for a week. 

So what's going on? Let's take a look at the Fifth Circuit's decision on Friday, which is not the first time they have weighed in on mail-order abortions. The same court reversed the Biden Regency's attempt to use the COVID pandemic as an excuse to overrule the very rational requirement to see a physician in person before receiving mifepristone, which triggers miscarriages that can – and occasionally do – create life-threatening hemorrhaging, with that risk increasing as gestation progresses. 

A unanimous panel ruled in favor of Louisiana, which had challenged the FDA ruling over its use of flawed data in support of its rule change, known as a Risk Evaluation and Mitigation Strategy (REMS). The FDA essentially admitted to the allegation, but insisted that the rule change should be upheld. The court also found that the FDA and the Biden administration deliberately accelerated the process to frustrate Louisiana's law against abortion:

With certain exceptions, Louisiana law bans administering, prescribing, procuring, or selling a drug like mifepristone to end the life of an unborn human being. See La. Stat. Ann. § 40:1061(C) (2022) (“No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being.”).

An avowed purpose of the 2023 REMS was to expand access to medication abortion. See Exec. Order No. 14076, 87 Fed. Reg. 42053 (July 8, 2022) (in the wake of Roe’s overruling, directing federal agencies to “expand access to . . . medication abortion” by “protect[ing] healthcare service delivery and promot[ing] access to . . . abortion”). Predictably, the regulation has had that effect in Louisiana, despite the fact that its laws ban the practice.  

By ending the in-person dispensing requirement, FDA opened the door for mifepristone to be remotely prescribed to Louisiana women. The record shows that the policy now facilitates nearly 1,000 illegal abortions in Louisiana per month.

In other words, the federal government used flawed data to create a back-door path for abortions that the state had mainly outlawed. The flawed data relates to the dispensing of mifepristone without medical supervision, which again is necessary to ensure that the medication is not taken past a certain point in a pregnancy, or to ensure against other potential complications. The FDA recognizes that this risk exists even with medical supervision, and is exacerbated without it, the court determined:

Louisiana identifies $92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state mifepristone. Such costs will almost certainly continue because nearly 1,000 women monthly—many of whom are on Medicaid—have mifepristone-induced abortions in Louisiana.

Confirming this, FDA’s 2023 mifepristone label reports that 2.9 to 4.6 percent of women prescribed mifepristone in-person will require emergency care. See Alliance I, 2023 WL 2913725, at *10 (FDA’s “own documents . . . prove that emergency room care is statistically certain in hundreds of thousands of cases”). Remotely dispensing the drug will only exacerbate those risks, as the district court found. See DC Dkt. No. 1-10 at 35 (“[T]he literature suggests there may be more frequent ED/urgent care visits related to the use of mifepristone when dispensed by mail . . . .”). Accordingly, Louisiana has shown that it suffers financial injury caused by the 2023 REMS. 

All of this has been well known ever since the FDA rolled back the requirement for medical supervision and enabled mail-order abortions. The Fifth Circuit shut it down three years ago, but the Supreme Court overruled it on the basis of standing. The panel attempted to address that challenge in anticipation of another appeal to the Supreme Court:

FDA and Danco counter that the 2023 REMS only makes it “more difficult to police” violations of Louisiana law. Not so. The policy does not merely “increase[] crime or disorder, or impose[] indirect compliance costs for state law enforcement.” Washington v. FDA, 108 F.4th 1163, 1177 (9th Cir. 2024). Rather, the 2023 REMS sanctions and facilitates conduct with the express purpose of undermining Louisiana’s legal restrictions on abortion. The regulation creates an effective way for an out-of-state prescriber to place the drug in the hands of Louisianans in defiance of Louisiana law. 

In sum, the agency’s 2023 REMS causes “federal interference with the enforcement of [Louisiana] law,” which gives Louisiana standing to challenge it. Texas, 809 F.3d at 153; see also Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1242 (10th Cir. 2008) (“injury-in-fact” shown when federal agency’s legal interpretation “interfere[d] with Wyoming’s ability to enforce its legal code”); Maine v. Taylor, 477 U.S. 131, 137 (1986) (“[A] State clearly has a legitimate interest in the continued enforceability of its own statutes.”).

This puts the new ruling on solid ground for standing, not to mention the FDA's acknowledgment of the use of incomplete data for its 2021 REMS. Since the 2023 reversal, the state of Louisiana can also point to specific financial losses due to the 2021 REMS and the likelihood that those costs will increase in the future as more misuses occur. 

As one might imagine, both plaintiffs in the appeal are objecting on the basis of standing. The Danco submission suffices for an understanding of the likely issues that the court will hear in its emergency review:

Like the Alliance plaintiffs, Louisiana is not required to “prescribe or use mifepristone” or to “do anything or to refrain from doing anything” as a result of FDA’s actions. Alliance, 602 U.S. at 385. In fact, Louisiana largely prohibits the termination of pregnancy. The Fifth Circuit nevertheless found that Louisiana has standing to challenge FDA’s 2023 changes to mifepristone’s conditions of use based on “$92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state mifepristone.” App., infra, 11a; see also Compl. ¶ 109, Louisiana v. FDA, No. 6:25-cv-01491 (W.D. La. Oct. 6, 2025), ECF No. 1 (alleging that use of that drug by others will cause “pocketbook injuries” for Louisiana through “Medicaid payments” and “the ordinary costs that arise when uninsured or underinsured patients seek services at public hospitals”).1  But this Court rejected the idea that a plaintiff can claim Article III standing based on an assertion that “FDA’s relaxed regulation of mifepristone may cause downstream economic injuries.” Alliance, 602 U.S. at 386. “The chain of causation is simply too attenuated.” Id. at 391. 

The difference on this point is that the damages are no longer theoretical. At least from this explanation, the argument in Alliance related to expected damages rather than real cases. Louisiana has a specific case history to make the claim this time. 

Their argument on the conflict between federal and state law on abortion looks like an even bigger reach. Not only does it ignore the argument in Dobbs, it also overlooks the fact that the other precedent cited may already be on the verge of extinction:

The Fifth Circuit also concluded that Louisiana had standing because there is a mismatch between the state’s policies prohibiting abortion, the federal government’s determination of how to balance the statutory factors that Congress directed the agency to consider in modifying a drug’s conditions of use, and other states’ laws that diverge from Louisiana’s in how they regulate abortion. According to the Fifth Circuit, that mismatch supposedly frustrates the enforcement of Louisiana’s laws and causes it “sovereign injury.” App., infra, 9a-10a. But states have no sovereign interest in having other sovereigns’ policies match theirs. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (a state “surrenders certain sovereign prerogatives” such as “forc[ing]” other sovereigns to conform with its chosen policy). And a divergence in abortion policy at the state level is a natural result of “return[ing]” abortion policy to the states. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 292 (2022). 

Let's start with Dobbs. It seems odd that Danco (and GenBioPro) would cite that case as a two-sovereigns argument, since Alito himself wrote in Dobbs that the federal government had no jurisdiction over abortion. That is precisely why Louisiana passed the law that the FDA is attempting to override. 

Next, Massachusetts v EPA is also weak in two ways. First off, the court is likely to vacate it when the court hears the challenge to the EPA's repeal of the "endangerment finding" on carbon dioxide. Second, the issue in front of the court in the 2007 case was an environmental issue that involved some obvious interstate impact.  That's hardly true of abortion, which again this same Supreme Court returned to the state legislatures to regulate in Dobbs. This sounds more like an argument against SCOTUS intervention than it does for relief. 

For those reasons, I'd guess that Alito issued a temporary stay to allow both sides to refresh the 2023 arguments over standing. It makes sense to suspend the impact of the Fifth Circuit ruling for a brief period while hashing this out, but if Alito thought the court would just follow suit from their earlier ruling, he would have referred the case to the full court for cert, along with a more substantive injunction against the ruling. This looks more like a quick way to reverse the previous ruling on standing, allowing the ruling to take full effect while Danco and GenBioPro pursue an appeal the hard way. A flat no would have been better, but Alito's approach here leaves some room for optimism that the court will finally hear the substantive case against the 2021 REMS and put an end to the Biden Regency's workaround on abortion restrictions – not to mention protecting women from medical malpractice. 

Update: A commenter wonders whether Alito may have flagged this as an illegal "national injunction." Perhaps, but the court did address that point at the end of the opinion:

Finally, the district court was concerned that, because “this case arises amid multiple parallel lawsuits across the country,” there is “a substantial risk of inconsistent judicial outcomes on a question of nationwide importance.” That risk is inevitable in such litigation, however. See, e.g., BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 610 (5th Cir. 2021) (observing OSHA’s covid vaccine mandate was challenged “in federal courts of appeals across the nation”). It does not absolve courts from deciding the cases before them. If disagreement emerges, we have a Supreme Court. See NFIB v. OSHA, 595 U.S. 109, 117 (2022) (agreeing with us that “the Secretary lacked authority to impose the [covid vaccine] mandate”). 

It is true, as the district court noted, that a § 705 stay “would, as a practical matter, have a nationwide effect.” See Alliance II, 78 F.4th at 254 (explaining “a stay [under § 705] temporarily voids the challenged authority”). 10 We do not agree, however, that this result is somehow in tension with Trump v. CASA, 606 U.S. 831 (2025), as the district court suggested. In CASA, the Supreme Court plainly said it was addressing only equitable relief and not remedies under the APA. See id. at 846 n.10 (“Nothing we say today resolves the distinct question whether the [APA] authorizes federal courts to vacate federal agency action.”).

The court's ruling only explicitly applies in Louisiana. This is not a case where a federal judge ruled that his/her decision applied in all jurisdictions. I suspect Alito understands the difference, and I doubt he'd have a hearing over that issue anyway. It's still an excellent question.