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Last week the Supreme Court the latest crisis around mifepristone, a drug used in most abortions nationwide, but one thing remains clear: Some conservative judges are tempted to reenter the fray on reproductive rights, despite Justice Brett Kavanaugh’s promise that in overturning Roe,the court was getting out of the abortion business.
The case involved a challenge brought by Louisiana to a 2023 Food and Drug Administration decision allowing telehealth access to the drug. Louisiana contended that the FDA had inadequately reviewed safety risks in removing the in-person dispensing requirement, and the conservative 5th Circuit Court of Appeals , blocking telehealth access nationwide as the litigation continued. At the request of mifepristone’s manufacturers, Danco and GenBioPro, the Supreme Court agreed to stay the 5th Circuit’s order until it issues a final decision in the case.
But don’t be fooled into believing that the threat to mifepristone is over. The anti-abortion movement is still working through the courts and through the Trump administration to impose national limits on mifepristone that voters would never endorse. As importantly, the Louisiana case provides clear evidence that a campaign that presents itself as pro-woman is actually just pro-punishment.
There are now several cases attacking mifepristone in the lower courts, some of them more ambitious than Louisiana’s. The attorneys general of Texas, Florida, are all challenging FDA regulation of mifepristone. Individual lawsuits brought by insist—as did Justice Clarence Thomas in dissent from Friday’s stay of the 5th Circuit ruling—that the Comstock Act, a 19th-century obscenity law, makes it a crime to mail .
The anti-abortion movement is pressuring the FDA to change regulation of medication abortion. Abortion foes feel optimistic now that Marty Makary, the former FDA commissioner, is out. Kyle Diamantas, a lawyer and friend of Donald Trump Jr. who is now serving as the interim leader of the FDA, immediately reached out to anti-abortion groups and seemingly reassured them that there would be movement on efforts to restrict mifepristone.
And the Louisiana case will inevitably return to the justices next year. Given the lack of explanation in the court’s order, we can’t be sure how the justices voted or what their reasoning was. The state’s case for standing—a perennial problem for abortion opponents in recent cases—is weak. But the dissenting opinions from Justices Thomas and Samuel Alito make clear the court was debating other issues as well.
Alito charged that FDA telehealth regulations and state laws shielding doctors who advise patients across state lines amounted to “the perpetration of a scheme to undermine our decision in Dobbs”—a claim that might equate Dobbs with criminalization. Alito would have allowed the 5th Circuit to suspend the telehealth FDA decision to “spur … the FDA into moving on its safety review,” but at least for now, he couldn’t persuade other justices to join him. Because of a major anti-abortion push, the agency is presently engaged in a politicized review of mifepristone’s safety, including telehealth access to the medication. Issues of drug safety are usually resolved by the FDA, not the courts.
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If the FDA does not reimpose the in-person dispensation requirement, the Supreme Court might yet intervene. Given Donald Trump’s dismal poll numbers, some justices might be reticent to be seen as creating a new national abortion restriction—with special bite in Trump-voting states—months before the midterm. But by the year’s end—when those midterms are over—they may be willing to intervene if the FDA hasn’t already acted.
The strategy of abortion opponents in the Louisiana case is shaped by the need to reckon with an American public that overwhelmingly supports abortion access. The Trump administration could propose legislation and policies banning access nationwide, but the president has recognized the political risk and so far refused.
In the Louisiana case, even the anti-abortion movement has adapted its messaging to take account of public opinion. Instead of talking about protecting unborn life, the movement talks about protecting women’s health: It claims telehealth and mifepristone are unsafe for women, just as it used to argue that —an abortion-hurts-women strategy the movement adopted long ago when it realized that the public rejected campaigns that attacked women and doctors.
But the Louisiana case shows that this talk about protecting women’s health is double-talk—movement code for protecting unborn life. In making the case for standing, Louisiana expressed its interest as enforcing state law punishing “the termination of the life of an .” Both of the justices dissenting in the Louisiana case similarly fixated on the criminal law, with Thomas embracing the recently concocted claims of the anti-abortion movement that the Comstock Act is a categorical ban on mailing abortion-related materials—a claim that we have shown is flat wrong as a matter of text, doctrine, and history. Neither Thomas nor Alito expressed an ounce of concern about women’s health—nominally the question at issue in the FDA case.
It may not be surprising to know that Louisiana’s real priority is fetal rights, not women’s health. The problem is that abortion opponents today too often equate protection of fetal rights with intensifying criminal penalties for abortion providers and even people who have abortions—and devote few resources to the health of women and the children they bear.
In the wake of Dobbs, the so-called abortion-abolitionist position—which requires the punishment of women for abortion—is gaining support in the anti-abortion movement. The states that most harshly punish abortion—and seem most open to abolitionist bills—often invest the least in healthcare. Louisiana’s legislative priorities are emblematic. The state is one of two that has voted bills punishing women for abortion out of committee. Louisiana, which has serious gaps in access , had the highest rate of maternal mortality in the nation last year.
Mifepristone access will remain under fire for the foreseeable future. The Supreme Court’s shadow docket ruling may not have told us much about what a majority of the justices were thinking, but it did help expose what the case was really about: the state’s interest in punishment.
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