Abortion Pills Head to the Supreme Court

Two judicial rulings over mifepristone this month have set the stage for the most important legal battle over abortion since the overturn of Roe v. Wade in 2022—and the fight has exposed the growing divide between the pro-life movement and the Trump administration.

Central to this legal battle is the Biden administration’s decision to use the pretext of the COVID pandemic to temporarily suspend the requirement that abortion pills be dispensed in person by a certified healthcare provider or clinic in 2021; the change was made permanent in 2023. This created a massive mail-order market that has sent abortion pills flowing into states with pro-life laws, triggering a series of lawsuits. 

Louisiana launched a lawsuit last year challenging the Food and Drug Administration’s 2023 decision and arguing that the changes both lacked sufficient safety data and enable illegal abortions in their state, which has some of the most comprehensive pro-life protections in the country. 

On May 1, the U.S. Court of Appeals for the Fifth Circuit agreed with Louisiana that the mail-order abortion pills coming across state lines were a violation of the state’s pro-life laws. The court issued a temporary stay order in State of Louisiana v. FDA, reinstating the FDA’s pre-2021 requirement. The decision paused mail-order access to abortion drugs across the country.

“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is [a] human being from the moment of conception and is, therefore, a legal person,’” the court’s decision states. The decision also notes that the FDA has admitted “it had failed to adequately study whether remotely prescribing mifepristone is safe,” and that Louisiana’s case was “strong.” 

Two pharmaceutical companies that produce the abortion pill, Danco Laboratories and GenBioPro, swiftly petitioned the Supreme Court for emergency relief to restore access to the drugs, arguing that the stay would create chaos. On May 4, Justice Samuel Alito issued an administrative stay of the Fifth Circuit’s order, temporarily restoring telehealth and mail-order access until at least May 11 as the Supreme Court considers the case further.

Pro-life leaders have been exultant about the Fifth Circuit’s decision and optimistic that the Supreme Court’s administrative stay will be ultimately temporary. “Women and children suffer and state sovereignty is violated every day the FDA allows abortion drugs to flood the mail—harms that are no mere accident, but predictable outcomes of the FDA’s unscientific removal of safeguards like in-person doctor visits,” stated Marjorie Dannenfelser of Susan B. Anthony Pro-Life America.

In response to the Supreme Court’s stay, Alliance Defending Freedom—which joined Louisiana’s challenge to the FDA—was emphatic. “This is NOT a reversal of Friday’s decision,” ADF said in a statement. “Rather, it’s the run-of-the-mill pause that the Justices typically use to consider the issues raised in an emergency application. . . . We respect the Court’s desire to have time to consider the issues and will continue our fight to uphold this victory.”

Repealing the FDA’s 2023 change has become the pro-life movement’s primary goal since Dobbs. Thirteen states have strong pro-life protections for unborn children, but mail-order abortion pills have essentially nullified these protections; according to the Guttmacher Institute, 63 percent of abortions in 2023 (the latest year for which national data is available) were pill abortions. The abortion rate is rising for the first time in decades, and a quarter of abortions are facilitated by telehealth services.

Despite this, the second Trump administration has actively opposed the pro-life movement’s attempts to restore the pre-2021 status quo. The Trump Department of Justice has continued the Biden policy of defending the FDA against state-led lawsuits against the abortion pill, asking for dismissals or pauses as the FDA conducts a safety review of mifepristone. In the meantime, the Trump administration approved another generic abortion pill in October 2024. 

In sharp contrast to the strong record of the first administration, Trump’s approach this time around has been to keep the pro-life movement in the tent but off the platform. In 2024, the Trump campaign stripped the pro-life plank out of the GOP platform for the first time in decades; during the campaign, Trump stated that he supported access to the abortion pill. Vice President JD Vance has attended the March for Life twice to shore up support, but pro-life leaders long muted in their criticisms are now openly expressing their frustration with the administration. 

“Restore the in-person dispensing by a doctor of these drugs!” Dannenfelser told a protest outside the HHS department in January. “What a modest thing to do for the women and children of America. Restore that to the Trump 1 policy! The Biden COVID-era abortion drug policy has led to devastating moments of death for children and coercion and death for women. . . . Abortions have gone up since Dobbs, not down!”

She was blunter speaking to the Wall Street Journal last week. “Trump is the problem. The president is the problem.”