For now. As always, we must say “for now”.
The Supreme Court will keep mifepristone available as usual, it ruled in a Thursday order, blocking a 5th Circuit Court of Appeals ruling that would reimpose in-person dispensing requirements and prevent the drug from being mailed.
The majority was unsigned. Justices Samuel Alito and Clarence Thomas wrote separate dissents.
Thomas staked his dissent on the Comstock Act, a 19th century anti-obscenity law the anti-abortion movement has seized upon as it attempts to ban the mailing of mifepristone nationwide.
“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” he wrote. “They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Alito’s dissent is more scattered, first lamenting that the “unreasoned” granting of the stay undermines the Court’s decision in Dobbs.
Then he spends a lot of time venting his spleen on Danco and GenBioPro, makers of mifepristone.
“The manufacturers of the drug, including Danco and GenBioPro, are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana,” he seethed.
It is not clear how the makers of mifepristone would stop their product from being mailed into red states.
[…]
The reprieve for mifepristone may only be temporary; the case will reach the Supreme Court on the merits, and the court’s six right-wing justices will have their second crack at restricting the abortion drug since Dobbs.
Banning or restricting mifepristone has become the primary aim of the anti-abortion movement, as women in abortion deserts have obtained the pill through telehealth prescription and mail forwarding services. Blue states’ shield laws have, so far, thwarted red state attempts to get the providers extradited for prosecution.
Anti-abortion activists (including Alito, based on his dissent) have become increasingly furious with the Trump Food and Drug Administration, which they expected to at least unilaterally reimpose restrictions on mifepristone if not yank it from the market altogether.
“Danco and GenBioPro then filed these stay applications, and the FDA takes no position on this matter, even though it concerns the question whether an important rule that it has found to be flawed will remain in force for some unknown period of time,” Alito fumed.
Former FDA Commissioner Marty Makary, who resigned under pressure this week, had reportedly instructed the agency to slow-walk a safety review of mifepristone until after the 2026 midterms. Anti-abortion activists are hoping that his replacement will be more amenable to their aims.
See here and here for the background. I don’t know how long it might take for the original case to make its way to SCOTUS, but it will get there eventually. Perhaps by then the reconstituted FDA will have given mifepristone the shiv via a bullshit “review”. I still think nothing is likely to happen before this election, but who knows how bloodthirsty the forced-birth zealots are now. The 19th, Law Dork, which has a copy of the order, Mother Jones, and the Associated Press have more.