A major abortion case likely headed to the Supreme Court may be creating a sense of déjà vu. Louisiana is one of several states trying to shut down telehealth abortion access nationwide. The stakes are high. Telehealth accounts for roughly 30 percent of all abortions. Its availability is the reason that red states have struggled to enforce criminal abortion bans. Louisiana argues that the Food and Drug Administration acted arbitrarily and capriciously in 2023 in allowing telehealth access to mifepristone, the first of two pills used in the typical medication-abortion protocol. The state also argues that current rules violate the Comstock Act, a 19^th-century obscenity law that Louisiana characterizes as a de facto national abortion ban. The state is asking the 5^th Circuit to immediately pause telehealth access to mifepristone as the case continues.

The strange thing is that Louisiana asked the 5^th Circuit for the same thing last year. A different panel drawn from the judges of that court granted the state’s request and temporarily blocked , but that order was slapped down by the Supreme Court, which last spring granted a request made by mifepristone’s manufacturers to leave access to the drug untouched. The court explained that the status quo on mifepristone would remain in place until the Supreme Court deals with a certiorari petition in the case or the 5^th Circuit rules on Louisiana’s current appeal.

And in that appeal, Louisiana is asking the 5^th Circuit for exactly what the Supreme Court said the state couldn’t have. Louisiana’s move seems to reflect a mixture of impatience and anxiety. Since the Supreme Court overturned Roe v. Wade, anti-abortion plaintiffs have struggled to establish that they have standing to sue. In the 5^th Circuit, Louisiana is not just looking for immediate changes to the rules on mifepristone; the state is also trying to make sure it doesn’t fall into the same standing trap when the case arrives at the Supreme Court.

In an earlier case filed by the Alliance for Hippocratic Medicine, an anti-abortion medical organization, a Texas district court and the 5^th Circuit found fault with the FDA before the Supreme Court unanimously held that the plaintiffs didn’t have standing to sue.

In the Louisiana case, Judge David Joseph that the state was different. The doctors in the Alliance for Hippocratic Medicine case could only speculate about future injuries. The 2023 rules governing telehealth, by contrast, already made it hard for Louisiana as a sovereign to enforce its own criminal abortion ban, the court concluded, and Louisiana could show that it had spent tens of thousands of dollars on Medicaid patients suffering from mifepristone complications.

Joseph then relied on the logic of those earlier rulings—and the fact that the Trump administration won’t defend the current FDA rules on the merits—to conclude that Louisiana was eventually going to win. But Joseph also ruled that the FDA deserved a chance to impose new limits on mifepristone before being ordered to do so by the court. The Trump FDA has since moved ahead with a study of mifepristone’s safety, conveniently scheduled for completion after the midterm.

Louisiana didn’t want to have to wait that long and asked the 5^th Circuit to immediately pause access. At oral argument in the case, the state dismissed the Supreme Court’s earlier order as a mere shadow-docket ruling. If we can’t be sure what the court thinks, Louisiana argued, there is no reason the 5^th Circuit can’t make its own independent decision about telehealth access right away.

It’s true that we don’t know how anyone voted or what those justices reasoned (beyond the fact that the manufacturers won, and that Justices Samuel Alito and Clarence Thomas wrote angry dissents). There are any number of unknowns, but one thing is clear: A majority of the justices ruled that mifepristone access should remain unchanged during litigation in the case. The state wants the 5^th Circuit to pretend that isn’t true.

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What does the Supreme Court’s order signal about what comes next in this case? The court may have wanted to let the FDA conclude its own review before intervening—especially given that doing so before the midterm would make abortion a major election issue.

It’s also possible that the justices had a problem with Louisiana’s claim for standing, which looks suspiciously like the one already rejected by the justices in the Alliance for Hippocratic Medicine case. That certainly seems to be a major concern for Louisiana. The state elaborated on its standing argument before the 5^th Circuit, channeling Justice Samuel Alito in insisting that the FDA had targeted anti-abortion states in a “scheme to undermine [the] .”

All of this leaves open the possibility that the Supreme Court may eventually rule for Louisiana on the merits. But the state is not likely to have its demands met right away. While the 5^th Circuit is the nation’s most conservative appellate court, the panel assigned to this case is relatively left-leaning, and the oral argument recently held in the case did not seem to go Louisiana’s way. The judges on the panel seemed unsure of Louisiana’s standing argument and unconvinced that the court should immediately give Louisiana what it wants while the FDA’s own review is unfolding.

The good news for abortion opponents is that whatever the 5^th Circuit does with Louisiana’s demand, that won’t be the last word on mifepristone. After the midterm, the Trump administration could impose new restrictions on mifepristone under threat from the district court. Trump has thus far hesitated to introduce sweeping new limits because the abortion issue has consistently hurt the GOP since the Supreme Court overturned Roe v. Wade. With disastrously low poll numbers, high gas prices, and an unpopular war, Republicans have not been eager to make another deeply unpopular move before the midterm.

After the election may be a different story. Trump has a history of caring far more about himself than the future of the political party he has remade in his image. Catering to abortion opponents may not help GOP candidates in 2028, but that may not bother Trump, who may be more focused on pleasing the conservative Christian supporters and donors who could be central to his postpresidential future.

Even if the Trump administration continues to slow-walk any move on mifepristone, the district court in the Louisiana case could force the administration to act. Or another court could do the same—one parallel case filed by the attorneys general of Texas and Florida seeks to take mifepristone off the market altogether.

It’s possible that the Trump administration will still want to do as little as possible for the anti-abortion movement, even after the midterm. And the standing problems that plagued previous anti-abortion plaintiffs could create an issue in the Supreme Court again.

As far as Louisiana is concerned, though, the end of telehealth access to mifepristone is just a matter of time.

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