Drugmaker asks Supreme Court to restore abortion pill access by mail

A drug manufacturer asked the Supreme Court on Saturday to immediately pause a lower-court order reinstating a requirement that a commonly used abortion pill, which has often been accessed through the mail, can only be picked up in person.

Danco Laboratories filed the emergency appeal after the U.S. Court of Appeals for the 5th Circuit in New Orleans issued a ruling Friday making it harder for women to access the abortion pill, mifepristone. It’s unclear when the Supreme Court might rule on the emergency application.

The ruling came in a Louisiana lawsuit against the Food and Drug Administration, which had previously allowed patients to access pills through telehealth and the mail. The rise of the use of such drugs has troubled anti-abortion advocates.

“It bears emphasis how unprecedented the Fifth Circuit’s order is,” Danco wrote in its application to the Supreme Court. “Never before has a federal court purported to immediately enjoin a several years’ old drug approval; restrict a distribution system for that drug that manufacturers, providers, patients, and pharmacies have all been using for years; or reinstate conditions that FDA determined do not meet the mandatory statutory criteria.”

After the Supreme Court eliminated Roe v. Wade in 2022, legal experts and abortion advocates forged a new path to preserve access, even in states with severe restrictions.

In eight Democratic-led states where the procedure remained legal, they worked to pass “shield laws” — measures that allow providers to remotely prescribe and mail the drugs to women regardless of where they live. Shield laws, which explicitly protect providers from out-of-state prosecution, have kept abortion pills flowing into all 50 states.

As the pill-mailing network flourished, so did the legal challenges against it. Anti-abortion advocates grew increasingly frustrated that women living under abortion bans could still legally end their pregnancies post-Roe. They began waging novel legal battles against online pill-mailing services and individual abortion providers.

A half dozen Republican-led states sued the FDA over the requirements to dispense mifepristone. Anti-abortion strategists have helped draft first-of-their-kind laws in conservative states like Texas to further curb access to abortion pills and punish those who help distribute them.

The anti-abortion movement has also repeatedly pressured the Trump administration and the FDA to rein in abortion drug access. Still, those myriad efforts had done little to keep women from accessing abortion pills — until Friday’s ruling. Legal scholars have expected the abortion pill issue to again appear before the Supreme Court for years.

The FDA approved mifepristone in 2000, and major medical organizations say there is “robust evidence” collected over more than two decades showing the pill is safe and effective.

Mifepristone is used in conjunction with another drug, misoprostol. The agency has imposed a safety protocol over the use of mifepristone and some of those restrictions have been eased over the years — including eliminating the requirement for the drug to be dispensed in person. Legal experts have previously expressed concern about rulings to restrict the abortion pill, worrying it could politicize the regulatory environment and prompt further lawsuits over controversial treatments.

Abortion providers have braced for rulings that could curtail access to the drug before. They’ve weighed what to do if that were the case, and had discussed potentially switching to a misoprostol-only regimen. Misoprostol can be used on its own but is considered somewhat less effective and can cause longer discomfort and cramping.