The Supreme Court on Thursday kept mifepristone abortion pills available for now, pending further litigation, siding with the drug’s manufacturers over Louisiana in an emergency appeal that called nationwide access to the widely used medication into question.

Justices Clarence Thomas and Samuel Alito dissented.

The manufacturers brought emergency appeals to the justices after a federal appellate panel issued an order on May 1 that would stop the pills from being mailed nationwide without needing an in-person visit to a doctor. The companies, Danco and GenBioPro, called the lower court order unprecedented and warned of chaos if it wasn’t halted. The order came from a three-judge panel of all GOP appointees, including two Trump appointees, on the U.S. Court of Appeals for the 5th Circuit.

Alito, who fields emergency appeals from that circuit, granted temporary relief for the drug companies on May 4 through May 11 and then extended that relief through Thursday at 5 p.m. ET. He issued what are known as administrative stays, which weren’t statements about his position on the merits of the issue, but the practical effect was to keep the drug available while he and his colleagues considered the matter further. The court missed Alito’s deadline on Thursday and issued the order siding with the companies closer to 5:30 p.m. ET.

Louisiana urged the justices to let the circuit’s order stand while the state’s lawsuit continues against the drug’s remote availability without seeing a doctor in-person. The Republican-led state argued that the issue stemmed from the Biden administration’s attempt to undermine the 2022 Dobbs ruling that overturned Roe v. Wade, and that the companies merely wanted to “increase their profits by selling more abortion drugs” and avoid compliance costs.

Alito echoed that sentiment in his dissent on Thursday, writing that at stake was “the perpetration of a scheme to undermine our decision in Dobbs.” In his own separate dissent, Thomas wrote that it’s a criminal offense to ship mifepristone for use in abortions and that the manufacturers aren’t entitled to relief from an adverse ruling “based on lost profits from their criminal enterprise.”

The high court majority’s unsigned, unexplained one-paragraph order said the 5th Circuit’s order is halted pending the result of a full ruling in the circuit court and whatever happens at the Supreme Court if the case is appealed back to the justices. That is, the justices could wind up having the final say again over how this litigation turns out. 

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Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.

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