Making Sense of the Supreme Court’s Mifepristone Ruling

A recent shadow docket decision suggests that the court isn’t hungry for further legal restrictions on abortion. But there are two familiar holdouts.

Next month marks the four-year anniversary of Dobbs v. Jackson Women’s Health Organization, the landmark decision where the Supreme Court overturned Roe v. Wade and eliminated the constitutional right to obtain an abortion. Many Americans wondered at the time whether the court would stop there, or whether it would go further in future cases to eradicate the practice nationwide.

For now, the answer appears to be the former. On Thursday, the Supreme Court lifted a lower-court stay that had blocked nationwide distribution by mail of mifepristone, the most widely used abortion drug, pending further litigation. In doing so, the court’s conservative majority may have signaled that it would take no active part in further restricting abortion access throughout the nation.

Thirteen states currently ban abortion at any point in a pregnancy, according to the Guttmacher Institute, while an additional seven states ban it at some point before the first 18 weeks of gestation. One of those twenty states is Louisiana, which has been among the most aggressive in the Union towards outlawing abortion. It is a felony offense to provide abortion drugs to someone in Louisiana.

Until recently, patients who sought mifepristone had to obtain it in person from a pharmacy after getting a prescription. The Food and Drug Administration changed the regulatory requirements in 2023—after Dobbs, it should be noted—to allow the drug to be distributed by mail instead. The Trump administration has also opened a formal review of mifepristone regulations in general, though it is not clear when it will conclude or what changes (if any) it will seek.

Last October, Louisiana also filed a federal lawsuit against the FDA to challenge the legality of the 2023 rule change. The state claimed that the agency had relied upon flawed data when making the change and argued that the new rule had led to illegal abortions in Louisiana. The FDA countered that it was reviewing mifepristone’s regulatory status, but argued that the status quo should remain in effect while that review takes place. Two of the drug’s manufacturers, Danco Laboratories and GenBioPro, also intervened in the lawsuit on the FDA’s side.

A federal district court in Louisiana partially sided with the state in April by ruling that it had standing to challenge the 2023 rule change and that it was likely to prevail on the merits. At the same time, the court not only declined to enjoin the FDA’s 2023 rules in deference to the agency’s ongoing review, but it also stayed the litigation altogether until that review was complete. Louisiana immediately appealed that decision to the Fifth Circuit Court of Appeals.

Earlier this month, a three-judge appeals panel sided with the state and vacated the 2023 rules. The panel said that the lower court had gotten the basics of the case right—indeed, there is little daylight between Louisiana and the FDA on the merits of the 2023 rules—but gotten it wrong on balancing the equities between the........

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