The U.S. Supreme Court on Monday blocked a decision by the U.S. Court of Appeals for the Fifth Circuit that halted the FDA’s telemedicine and abortion drug mail-order policy, pending a drug manufacturer’s appeal, in Louisiana v. FDA.
A mifepristone manufacturer filed an emergency appeal to the high court after the Fifth Circuit’s Friday ruling. Justice Samuel Alito paused the implementation of the ruling for a week.
The Center for Urban Renewal and Education (CURE) signed on to Advancing American Freedom’s (AAF) amicus brief (PDF) in the emergency appeal.
The Biden administration created a policy that allows providers to prescribe mifepristone by telemedicine and send through the mail, even though the drug’s safety hasn’t been evaluated since initial approval in 2000.
A few states filed lawsuits against the FDA to stop the policy until the FDA does a safety review. Louisiana also considers mifepristone a controlled substance that should not be sent through the mail or obtained at all. The U.S. Department of Justice opposes the lawsuits.
AAF and the amicus brief’s signers contend that the FDA is assaulting states’ authority by allowing mifepristone to be mailed to states.
“This Court improperly compromised state authority between 1973, when it invented a constitutional right to abortion in Roe v. Wade…and 2022, when it overruled Roe and held that the Constitution ‘does not confer a right to abortion,'” AAF wrote. “The Dobbs court rightly concluded that ‘the authority to regulate abortion must be returned to the people and their elected representatives.’…Since then, Louisiana has exercised its authority to classify abortion drugs as controlled substances and to prohibit obtaining them, including through the mail.”
But state law did not protect Rosalie Markezich, a Louisiana resident and plaintiff in the lawsuit. While she was pregnant, her boyfriend used her personal information to obtain mifepristone through the mail and coerced her into taking it.
Justice Alito’s stay on the Fifth Circuit’s ruling expires next Monday. AAF, CURE, and the amicus brief’s other signers asked the Supreme Court to uphold the appeal court’s decision to halt the FDA’s telemedicine and mail-order abortion drug policy.
