On Thursday, May 14, the Supreme Court voted 7-2 to preserve access to the abortion pill mifepristone through telehealth and mail delivery, at least for now. The ruling blocked a decision from the 5th US Circuit Court of Appeals that would have restricted access by requiring patients to obtain the medication through in-person visits. The case stems from a lawsuit filed by Louisiana challenging FDA rules that expanded access to the medication during and after the pandemic.
Justices Clarence Thomas and Samuel Alito dissented, arguing the mailing of abortion pills violates the 19th-century Comstock Act, which prohibits the transport of all medications and obstetrical supplies used in abortion care by mail. The Comstock Act was passed in 1873 and has long been considered a “zombie law,” meaning it has not been enforced but remains on the books. The Department of Justice released a legal memo in 2022 clarifying that Comstock does not prohibit the mailing of abortion medications unless the sender intends that the drugs will be used unlawfully. Anti-abortion extremists have been attempting to revive the law to misuse it as a nationwide abortion ban.
Mifepristone works by blocking the hormone progesterone, which is needed for a pregnancy to continue. It is taken in conjunction with misoprostol in order to end a pregnancy up to ten weeks and has been approved by the FDA since 2000. The Feminist Majority Foundation has long played a major role in expanding access to mifepristone, leading a decade-long campaign to help secure the drug’s FDA approval and continuing to advocate for broader access and medical research involving the medication. Medication abortion is widely used around the world and accounts for roughly two-thirds of U.S. abortions, according to the Guttmacher Institute.
Public opinion polling also shows broad opposition to court interference in access to mifepristone. A report released by the Committee to Protect Health Care found that 60% of registered voters say courts should not overrule doctors and the FDA on how patients can access approved medications. The study also found that 72% of registered voters say medical decisions, including whether to use medication abortion, should be between a woman and her health care provider.
The case will now return to the federal appeals court, though the issue is likely to reach the Supreme Court again in the future.
