Abortion pills have been on a bit of a roll in the US in the past few weeks.
It starts in Louisiana: The state sued the Food and Drug Administration late last year, seeking to eliminate access to the abortion pill mifepristone by phone and by mail order.
On May 1, the US Fifth Circuit Court of Appeals sided with Louisiana, temporarily blocking access to abortion by phone and the pill by mail nationwide. Then the Supreme Court to be measured; Justice Samuel Alito, a conservative opponent of abortion rights, however temporarily restored access to the pill by phone and mail while the Court considered the merits of the case.
Now, the Court says it will maintain its stay of the Fifth Circuit’s decision until at least 5 p.m. on Thursday as it deliberates.
To understand the complexity of court cases and what is at stake, Today, It’s Explained co-host Sean Rameswaram spoke with Alice Miranda Ollstein, senior health care writer at Politico.
The following is part of their conversation, edited for length and clarity. There’s a lot more in the full podcast, so take a listen Today, It’s Explained wherever you find podcasts, incl Apple Podcasts, Pandoraand Spotify.
At the end of the week, can the availability of abortion pills across the country change?
Yes. What Louisiana is demanding is that the Supreme Court allow the restrictions to go into effect now, even before the case is settled. Louisiana says that every day that patients in our state can get abortion pills online and ship them — contrary to the state ban — is a day we are hurt as a state. They claim independent injury.
They say the ability for patients across the country to get these pills by phone, online prescription and mail order is helping people in their state evade the law. And that’s why they want the Supreme Court to step in and cut that off for everyone across the country, because it’s federal policy.
Drug manufacturers are the ones fighting against it – the two companies that make this abortion pill. And they say there is no major injury. You can’t just remove the policy for everyone because you don’t like how people are using it.
And they say that this policy has been in use for several years already. There is no sudden emergency where you need to be banned right now. And so, the Supreme Court should keep everything as it is now while the case is going on.
Do we have any idea where the Supreme Court stands on the abortion pill at this point?
Reading the tea leaves is always a difficult project with the Supreme Court. People try to guess based on the questions that were asked at the oral argument. We are not there yet in this case. It is very difficult to know.
Politico hasn’t gotten, like, a leak at this point about the decision.
Not on this one. It’s very possible that, once again, they lie at the heart of the abortion issue, about federal authority versus state authority, and simply say, “No, you have no standing. You cannot prove that you, the state, are harmed by this policy.”
It seems a little contradictory, right? I mean, the Supreme Court said let the states decide. Years later, you have Louisiana saying, “Hey, ban abortion pills nationwide.“
What’s interesting here is that you have both sides making the states’ rights argument and saying, “My rights as a nation are being violated.” You have Louisiana saying, “Why should the liberal abortion policies of other blue states where anyone can get the pill be allowed to invade our state when we are here trying to ban abortion?”
They’re basically saying that allowing this anywhere, you know, violates their right as a state to ban it. Now, of course, as you just explained, you also have people who say, “Wait a minute, so that means it’s going to be restricted for everyone, even people who have laws on the books in their states that support access to abortion?”
It’s one of those compromises that doesn’t please anyone, because anti-abortionists will never be satisfied. They say, “Why should an infant’s rights end at the state border?” And of course, on the other side, you have people who say, “Why should a pregnant woman’s rights stop at the state border?”
And so this will always be a federal war.
“Even if pills are not completely banned, but mobile communication is blocked, that will be a big blow.”
How big a deal have abortion pills been since the Supreme Court overturned them Roe v. Wade (in 2022)?
Even before that, they were becoming increasingly popular as an abortion method. And especially since the Covid pandemic, they have become the main method that people are choosing to have their abortions.
More than a quarter get it through telehealth. So even if the pill is not completely banned, but telehealth is restricted, that will be a big blow. And it’s not just a big blow to people living in states like Louisiana, where there is a ban in the country and they can’t go to the doctor’s office and get them even if they want to. It’s going to affect people in states like California, where there are these large areas of the state where it’s very difficult to get to a clinic.
We have medical deserts across the country, we have a shortage of providers, and telehealth has expanded access, including in states where it was already legally and technically accessible on paper, but not in practice.
Let’s say the Supreme Court weighs in Thursday afternoon, Thursday morning, who knows? If they say no more telehealth abortion pills, what does this look like in the US?
We actually got a sneak preview of what it will look like a few weeks ago.
We had a few days between when the Fifth Circuit ruled in Louisiana and said, “Okay, we’re going to block access to these pills across the country.” It took the Supreme Court a few days after that to step in and say, “Whoa, whoa, whoa, let’s take a break. Let’s go back to the way things were. Let’s go back to telehealth access while we figure this out.”
In those few days, you saw these service providers ordering and shipping pills to people living in the banned states to make various decisions. Some of these groups stopped immediately. Other groups, including some doctors I spoke to in Massachusetts, have been preparing for this for years. And so they had a ready plan to turn to providing the second pill of the two-pill abortion procedure.
To get an abortion, you can’t just take mifepristone alone. You have to take it with another pill, misoprostol. You can take misoprostol alone, and that is very common in some countries. So these groups, including the ones I spoke with, immediately offered to deliver misoprostol to patients who prescribe the pill.
So there’s a lot at stake here for abortion access in the United States this week at the Supreme Court. I’m curious how the president of the United States feels about this. Not that he has a speech, per se, but has he measured?
He hasn’t, and neither has his Justice Department. What really surprised me was that the Supreme Court was like, “Okay, we’re going to come in here and at least decide this case in a short time.”
They heard from Louisiana, they heard from the drug manufacturers, they heard from all these other people – members of Congress, governors, medical groups, activist groups on all sides, former FDA officials.
Everyone was sending briefs to the Supreme Court, but you know who didn’t? The Trump administration.
A boy who talks about everything and said nothing?
The Trump administration did not consider it, did not ask the Supreme Court to maintain the status quo or side with Louisiana. They remained silent. The FDA has said it is reviewing the safety of the pills and will make its decision, so the Trump administration had told the lower courts, “Hey, back off, let the FDA do its thing.” But now that the case is before the Supreme Court – nothing to say, silence.
