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The Supreme Court gets thrown back into the abortion wars

Why haven’t the Republican justices banned mifepristone already?

On Friday evening, the far-right United States Court of Appeals for the 5th Circuit attempted to cut off access to the abortion drug mifepristone. If you’re experiencing déjà vu, you should be, because in 2023, the far-right United States Court of Appeals for the 5th Circuit also attempted to cut off access to the abortion drug mifepristone.

Almost immediately after the 5th Circuit issued its second decision, two pharmaceutical companies that make the drug asked the Supreme Court to intervene. The two largely identical cases now before the justices are known as Danco Laboratories v. Louisiana and GenBioPro v. Louisiana.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

The 5th Circuit’s reasoning the first time around was so weak that the Supreme Court unanimously rejected it, holding that federal courts did not even have jurisdiction to hear the case in the first place. This time around, most of the legal issues are identical to the ones that were before the Court in FDA v. Alliance for Hippocratic Medicine (2024), the first mifepristone case. The Court should resolve Danco the same way it resolved the Alliance case, in a unanimous opinion holding that no federal court has jurisdiction to hear this challenge.

Notably, Justice Samuel Alito, who typically has the first crack at emergency appeals arising out of the 5th Circuit, issued a temporary order blocking the 5th Circuit’s decision until May 11. That’s a very hopeful sign for abortion providers.

That said, abortion providers and their patients have some reason to fear that this Court may not follow its decision in Alliance. While the Court did block the previous effort to ban mifepristone, Alliance is the only significant victory that abortion rights advocates have won in the Supreme Court since the Republican Party gained a supermajority on that Court.

The Court’s Republican majority frequently hands down anti-abortion decisions that are inconsistent with their previous precedents, including very recently decided cases. In Medina v. Planned Parenthood (2025), for example, the Republican justices appeared to overrule a two-year-old decision in order to cut off Medicaid funding to abortion providers.

Similarly, in Whole Woman’s Health v. Jackson (2021), five of the Court’s Republicans handed down an opinion that, if taken seriously, would allow any state to abolish any constitutional right by sending bounty hunters after anyone who exercises that right.

So, while the drug companies’ arguments in Danco are about as strong as a legal argument can possibly be, it remains to be seen whether this Court will follow its own precedent........

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