The Supreme Court keeps abortion pill mifepristone available by telehealth : NPR

Abortion rights activists protested outside the Supreme Court in March 2024, when the FDA’s blanket approval of mifepristone, an abortion pill, was challenged. He remained available after this affair.

Jose Luis Magana/AP

hide caption

toggle caption

Jose Luis Magana/AP

The Supreme Court decided Thursday to maintain the status quo regarding access to medical abortion.

The high court’s order means mifepristone, an abortion pill, will remain available via telehealth as a case brought by Louisiana against the Food and Drug Administration moves through lower courts.

The Supreme Court stayed a May 1 ruling by the New Orleans-based U.S. Court of Appeals for the 5th Circuit that would have banned mifepristone from being sent through the mail. The appeals court’s ruling would have applied to the entire country, not just states like Louisiana that ban abortion.

Thursday’s decision came in the form of a court order issued around 5:30 p.m., about 30 minutes after the deadline the court had set.

Justices Samuel Alito and Clarence Thomas publicly dissented and wrote about their dissents in the order.

In his dissent, Alito blasted his fellow justices, calling the order “unreasonable” and “remarkable.”

“What is at stake is the perpetration of a scheme to undermine our decision by Dobbs“, writes Alito, referring to the affair of which he is the author and which overturned Roe v. Wade.

Dobbs “restored the right of each state to decide how to regulate abortions within its borders,” Alito continues.

How Telehealth Abortion Works

The telehealth abortion process begins with connecting a patient with a healthcare provider over the phone or online. If the patient is eligible, the provider may prescribe two medications: mifepristone and another medication called misoprostol. Patients can pick up medications at a local pharmacy or providers can mail medications to the patient’s home.

This access largely explains why the number of abortions nationwide has increased since the Supreme Court overturned the constitutional right to abortion in 2022. Today, most abortions in the United States use this combination of drugs, and a quarter of them are done via telemedicine.

After the 5th Circuit’s May 1 decision, some providers said they would continue to offer telemedicine access to abortion medications using a different protocol that involves higher doses of misoprostol and not mifepristone. Researchers say this method is just as safe and effective, but tends to cause more side effects in patients, such as nausea and diarrhea.

Who weighed

Nearly two dozen Democratic-led states submitted an amicus brief in the case, writing that the appeals court’s decision places the policy choices of states that have banned abortion above the choices of states “that have made different but equally sovereign decisions to promote access to abortion care.” A similar number of Republican-led states have filed an amicus brief in support of Louisiana’s case.

There are also issues related to the power of the FDA and other expert agencies to set rules. Although the Trump administration’s FDA did not respond to the Supreme Court’s request for briefs, a group of former agency leaders, who served under mostly Democratic and some Republican presidents, wrote about it in an amicus brief. They defended the FDA’s process for approving the drug and changing prescribing rules, and say the appeals court’s decision would “upend the FDA’s science-based and benchmark-based drug approval system.”

The pharmaceutical industry’s trade group, PhRMA, also submitted an amicus brief urging the Supreme Court not to interfere with the FDA’s rules regarding mifepristone. The memo states that drugmakers “share a significant interest in protecting against market disruptions.” the stable and predictable statutory framework created by Congress to govern” the FDA.

The FDA is MIA

A twist in this story is that the FDA, the named defendant in the lawsuit, has not filed any briefs with the judges regarding this case.

“Clearly, the Trump administration didn’t know how to approach this problem from the beginning and basically tried to throw a spanner in the works, at least until after the midterms. [election]“So I think the administration’s doing nothing is, in some ways, consistent with what we’ve seen so far, just because it’s a politically sensitive issue.”

This week, FDA Commissioner Dr. Marty Makary resigned under pressure from the White House. It is unclear whether this trial played a role in his ouster, but anti-abortion groups have expressed dissatisfaction with how little he has done to restrict abortion in this role.