Supreme Court keeps abortion pill available by mail in 7-2 vote

The 📖Supreme Court issued a on May 14, 2026, granting stay applications filed by Danco Laboratories and GenBioPro, the two companies that manufacture mifepristone in the United States. The order blocks the 5th Circuit's May 1 ruling in Louisiana v. FDA that would have reinstated a nationwide requirement for patients to pick up mifepristone in person from a certified prescriber.

The stay remains in effect while the appeal plays out in the 5th Circuit and, if either side seeks it, through a potential petition for certiorari at the 📖Supreme Court. The court didn't explain its reasoning, and it didn't officially disclose the . Because only Thomas and Alito publicly dissented, the effective split is at least 7-2.

Justice Clarence Thomas wrote a anchored entirely in the 📖Comstock Act of 1873, an anti-obscenity statute codified at 18 U.S.C. 1461 that bans using the mail to ship any "drug ... for producing abortion." Thomas wrote that "it is a criminal offense to ship mifepristone for use in abortions" and that the manufacturers "are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise."

Thomas's framing treats a law that hasn't been prosecuted for mailing abortion drugs in over a century as binding federal authority. The Biden-era Office of Legal Counsel that the 📖Comstock Act doesn't prohibit mailing mifepristone when the sender lacks intent for unlawful use.

Justice Samuel Alito wrote a calling the majority's order "remarkable" and "unreasoned." Alito framed the case as an attempt to "perpetuate a scheme to undermine our decision in Dobbs," the 2022 ruling he authored that overturned Roe v. Wade.

Alito also took aim at Danco and GenBioPro directly, writing that the manufacturers "are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana." He had previously issued the administrative stays on May 4 and May 11 as the circuit justice responsible for the 5th Circuit, buying time for the full court to deliberate.

The 5th Circuit panel that triggered the crisis consisted of , a Trump appointee who wrote the opinion, joined by Judge Leslie Southwick, a George W. Bush appointee, and Judge Kurt Engelhardt, another Trump appointee. On May 1, 2026, the panel granted Louisiana's motion to stay the FDA's 2023 REMS modifications while the state's appeal proceeded, immediately reimposing the in-person dispensing requirement nationwide.

The panel's order applied to all 50 states, not just Louisiana, because it targeted the FDA's . That meant patients in states where abortion is legal also lost telehealth and mail access to the drug.

Louisiana Attorney General Liz Murrill, who has served as AG since January 2024, against the FDA in October 2025. Louisiana argued that the FDA violated the Administrative Procedure Act when it modified the REMS in 2023 to allow telehealth prescribing and mail dispensing, and that the modifications violate the 📖Comstock Act.

Murrill called the 📖Supreme Court's May 14 decision "shocking" and vowed to continue fighting. The case now returns to the 5th Circuit for a merits ruling on Louisiana's challenge. Nearly two dozen Republican-led states supporting Louisiana, while a similar number of Democratic-led states filed in support of keeping current access rules.

The FDA first approved mifepristone in 2000 under a strict REMS that required in-person dispensing at certified clinics. During the COVID-19 pandemic in April 2021, the FDA . In January 2023, the agency made these changes permanent, also adding a pharmacy certification process that let retail pharmacies dispense the drug with a prescription.

Monthly pharmacy fills for mifepristone after the in-person requirement was removed. Mail-order pharmacies accounted for nearly 98% of these fills where telehealth is permitted.

📖Medication abortion using mifepristone accounts for roughly , according to the Guttmacher Institute's 2025 full-year estimates. The share of abortions provided through telehealth has climbed from 5% in early 2022 to 27% in the first half of 2025.

Those numbers mean the 5th Circuit's ruling, had it taken effect, would have disrupted access for a substantial share of the estimated 1.13 million clinician-provided abortions annually. Patients in states with abortion bans who rely on telehealth providers in other states would have been affected most directly.

The 📖Comstock Act of 1873, formally codified across , originally targeted obscene materials, contraceptives, and abortion-related items sent through the U.S. mail. Congress never repealed it, but federal prosecutors stopped enforcing its abortion provisions decades ago. The law carries penalties of up to 5 years for a first offense and 10 years for subsequent violations.

Thomas's dissent is the first time a sitting 📖Supreme Court justice has explicitly endorsed using the 📖Comstock Act to ban mailing mifepristone since the court overturned Roe v. Wade. Anti-abortion groups including the Alliance Defending Freedom and Americans United for Life have pushed for as a backdoor to restrict abortion access nationwide without new legislation.

The decision arrived against a backdrop of turmoil at the FDA itself. HHS Secretary Robert F. Kennedy Jr. of mifepristone's REMS in September 2025, and FDA Commissioner Dr. Marty Makary on May 12, 2026, two days before the 📖Supreme Court order. Anti-abortion groups had criticized Makary for not moving fast enough to restrict the drug.

Kyle Diamantas, the Senior Counselor and Acting Deputy Commissioner for Human Foods who has no medical background, is now serving as acting FDA commissioner. Diamantas told Live Action on May 13, 2026, that he "cares deeply about the pro-life cause." The instability at the agency raises questions about whether HHS might independently modify the REMS to restrict telehealth and mail access even without a court order.