A common abortion pill survived a Supreme Court strike, leaving it available while judges decide its fate in an upcoming ruling. The court issued a short procedure Thursday evening, which indefinitely blocks a lower court order targeting the drug mifepristone.
Court Order in Danco Laboratories v. Louisiana it is not permanent, but it will remain in effect until this case is fully stated, and until the judges have time to fully consider the case. As a practical matter, that means that mifepristone will remain available until at least June 2027, assuming that neither Congress nor the Food and Drug Administration tries to restrict it.
As is often the case when the Supreme Court decides an issue regarding “shadow docket,” a mix of emergency motions and other issues the Court deals with quickly, the Court did not disclose how each justice voted. But Justices Clarence Thomas and Samuel Alito both published their dissenting opinions. At least five justices must have voted to block the lower court’s decision.
Dance It’s the second time the right-wing US Court of Appeals for the Fifth Circuit has tried to block access to mifepristone. After their first attempt, in FDA v. Alliance for Hippocratic Medicine (2024), the Supreme Court unanimously concluded that the federal courts lacked jurisdiction to hear the case.
As I explain in this pieceVery similar jurisdictional problems exist in Dance. So it’s no surprise that a majority of justices voted to block the Fifth Circuit’s latest order. However, the current Court reversed Roe v. Wadeand it is they are usually very hostile to abortion rights. So it’s a scary experience for abortion providers and their patients every time the Supreme Court gets its hand on an abortion-related case.
Technically, the Fifth Circuit’s order Dance it would not ban mifepristone outright – it was only supposed to ban the distribution of the drug by mail. But that order broke FDA rules governing how doctors can prescribe the drug, without substituting it for something else, so it is. it is unclear whether the drug would remain available if the Supreme Court had not acted as it did.
Thomas and Alito’s opponents argued that the drug companies that produce mifepristone are the equivalent of an organized crime ring. Thomas directly called them a “criminal enterprise,” citing the Comstock Act, a The defunct-but-never-repealed 1873 law which bans various sex-related products.
At the same time, Alito suggested that one of the two drug companies that manufacture mifepristone is participating in an “unlawful conspiracy” because their product is banned in Louisiana, although it is legal in many states and was approved for medical use by the FDA.
In any case, none of these judges’ opinions lasted a day Dance. At least for the next several months, mifepristone remains legal at the federal level.
