The Supreme Court on Thursday temporarily blocked a Fifth Circuit ruling in a Louisiana case that would have sharply restricted nationwide mail-order access to mifepristone, the abortion drug.
The Court on May 4 issued a one-week stay of the appeals ruling, meaning Joe Biden-era rules expanding access to mifepristone through telemedicine and mail delivery — and eliminating mandatory doctor visits to receive the do-it-yourself-abortion drug — would remain in place for seven days.
Now lax Biden-era rules are the law for at least as long as the case lingers in the legal system.
Louisiana v. FDA is set to return to the Fifth Circuit where it will be heard before all judges, not just a three-judge panel.
It is expected to return to the Supreme Court for a full decision later, possibly in the Court’s next term.
However, the Supremes on Friday were quick to lengthen their temporary stay issued earlier in the month and did so with a 7-2 vote.
How the conservatives voted
Justices John Roberts, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, considered the conservative justices, voted to expand the stay.
Only Samuel Alito and Clarence Thomas voted against.
“The fact that the Supreme Court, with only two justices dissenting, said, ‘no, we're going to let the abortion pill telehealth prescriptions continue is probably a bad sign for the ultimate outcome of this particular case,” Christopher Mills, of Spero Law, told show host Jody Hice.
Louisiana argues those rules conflict with its abortion laws and federal statutes such as the Comstock Act.
The Comstock Act is a federal law enacted in 1873 that originally prohibited the mailing or interstate transportation of “obscene” materials, as well as items connected to contraception and abortion.
Life advocates contend that the statute still prohibits mailing abortion drugs, while the federal government and abortion-rights advocates argue the law applies only when the sender intends the drugs to be used unlawfully.
Louisiana law prohibits abortion at all stages of pregnancy with exceptions only to prevent the death or serious, permanent impairment of the pregnant person’s life-sustaining organs, or in cases of medically futile pregnancies.
Alito and Thomas argued that allowing mail-order abortion drugs undermines The Court’s 2022 decision in Dobbs v. Jackson Women’s Health which overturned Roe v. Wade and returned abortion regulation to the states.
Most Republican-led states, like Louisiana, have strong pro-life laws.
“That’s how Justice Alito started his dissent. He said, ‘what's at stake is the perpetration of a scheme to undermine our decision in Dobbs, which was supposed to restore the right of each state to decide how to regulate abortion within its borders,’” Mills said.
But the federal government’s failure to enforce the Comstock Act leaves pro-life states in a bad position.
“It leaves states that want to protect unborn life in a very difficult situation where you have blue states enacting shield laws that protect their providers who are doing illegal abortions via the mail. You have the FDA who hasn't done anything to roll back the Biden-era expansion. Then you have the federal government not enforcing the Comstock Act,” Mills said.
Overlooking abortion by mail law
Most justices ignored the Comstock Act angle of the case, but Thomas did not.
“He said the drug manufacturers in this case aren't entitled to lost profits from what he called a criminal enterprise. So, he was emphasizing the Comstock Act, which the court hasn't really emphasized, but that's a federal law that could be enforced by the federal government if it sought to,” Mills said.
It’s possible that some justices who voted to extend the stay would take positions against mifepristone on the merits of the case.
The Fifth Circuit ruling wasn’t the only question before the Court.
“Part of the question before the Court was who is right on the merits of the FDA action and likely who is right about whether Louisiana and the individual woman plaintiff in the case have standing, because that was a big question before the Court last time it had an abortion pill case, and it's a big question this time,” Mills said.
