Trump’s Conflicted Views Are Complicating Abortion Policy

O n Thursday, the Supreme Court applied a stay to the Fifth Circuit Court of Appeals’ decision to block the FDA’s 2023 regulations allowing the abortion pill, mifepristone, to be prescribed via telemedicine and shipped through the mail. It comes at a time of deep tension between the Trump administration and pro-life advocates, and at a point where the FDA and Department of Justice are in flux. The decision should be an inflection point to prompt the Trump administration to restrict mifepristone immediately.

In this lawsuit, Louisiana sued the FDA over the loosened 2023 Risk Evaluation and Mitigation Strategies (REMS) regulations for mifepristone. Abortion drug manufacturers Danco Laboratories and GenBioPro intervened as defendants. Last month, the Fifth Circuit granted Louisiana’s request to stay the 2023 REMS for the duration of its litigation, affirming that Louisiana would likely succeed on the merits and would be irreparably harmed if the REMS continued to stay in force.

To its credit, the Trump FDA did not contest that there were problems with the 2023 REMS. They had frankly admitted as much when the administration announced a new FDA safety review of mifepristone last fall, citing a “lack of adequate consideration underlying the prior REMS approvals.”

The FDA disputed Louisiana’s standing to bring the lawsuit. The Fifth Circuit held that Louisiana had standing for two reasons: a violation of its sovereignty, since the 2023 REMS were explicitly designed to circumvent pro-life state laws by allowing women within those states to get abortion pills; and financial harms, as Louisiana bore costs for post-mifepristone emergency care through the state’s Medicaid program. After the Fifth Circuit’s ruling, Danco and GenBioPro — but, significantly, not the FDA — appealed to the Supreme Court.

After applying a two-week pause to review the appeal of the Fifth Circuit’s ruling, the Supreme Court overturned the Fifth Circuit, allowing the 2023 REMS to remain in place for the duration of Louisiana’s lawsuit. The Court did not publish any opinion explaining its ruling.

Justices Thomas and Alito each issued dissents. Thomas noted that the 1873 Comstock Act bans using the mails to ship any “drug . . . for producing abortion,” and that the drug manufacturers are not entitled to a stay of a court order due to the prospect of losing profits from what he deemed a criminal enterprise.

Alito argued that the abortion providers could not show irreparable harm, because there was no evidence that the FDA would actually enforce its pre-2023 REMS requiring in-person dispensing and prescription of the abortion pill. From 2021 to 2023, the Biden FDA simply operated under a nonenforcement posture before formally changing the REMS, and Alito saw no reason why that posture would not return, given the government’s stated desire to finish its safety review of mifepristone before changing its enforcement. But even if the in-person requirement were enforced, Alito still didn’t think the abortion pill manufacturers had demonstrated irreparable harm, noting that they were able to operate their business long before the 2023 REMS were issued.

Mifepristone remains the single biggest driver of American abortion. From 2021, when the Biden administration began allowing the drug to be shipped through the mail after a telemedicine visit, to today, the number of American abortions has increased from roughly 900,000 per year to over 1 million. This increase almost perfectly aligns with the increase in the percentage of American abortions performed via mifepristone; today, the pill is responsible for 63 percent of all abortions.

Despite the historic pro-life achievement of reshaping the Supreme Court to overturn Roe, along with a slew of excellent executive and legislative policies, Trump’s record on abortion is marred by the administration’s approach to mifepristone. In 2024, Trump explicitly praised the Supreme Court for allowing mifepristone to remain on the market after its decision in FDA v. Alliance for Hippocratic Medicine, despite the Court only ruling that the doctors challenging mifepristone’s FDA approval lacked standing. Since he resumed office in 2025, Trump’s FDA has done nothing to address mifepristone’s loose status, other than a health and safety review whose interminable delay was even noted by Justice Alito. Last year, the FDA approved a new generic version of mifepristone without any resistance. The recently resigned FDA Commissioner Marty Makary shockingly admitted that the FDA could have delayed it but chose not to.

The administration’s decision to defend the REMS against Louisiana’s lawsuit was understandable on a certain level: Trump generally wants to strengthen the executive branch by rejecting states’ standing to challenge various federal actions. Nonetheless, it came at the cost of actively fighting on the wrong side of the most consequential abortion question since Dobbs. The decision by the FDA and Department of Justice not to appeal the Fifth Circuit decision indicates some conflict over the administration’s posture.

Trump has frequently trumpeted his belief that abortion regulation is best left to state governments. Unfortunately, as Louisiana argued and the Fifth Circuit agreed, telemedicine-prescribed, mail-order abortion undermines the ability of state governments to regulate the practice. Pro-life state governments, for a variety of solid reasons, don’t want to directly prosecute women for abortion, and they cannot reach abortion suppliers located in blue states that have enacted pro-abortion “shield laws.” Justice Alito, the author of the Dobbs majority opinion, noted all of this within his dissent, pointedly mentioning that more abortions were happening in Louisiana now than before Dobbs.

As a result, Trump’s position is maddeningly contradictory. He wants abortion not to be a federal question, but he refuses to take the key federal actions necessary to put abortion decisively within the states’ domain. Mifepristone’s current loose regulatory status makes abortion a federal issue, plain and simple.

Thursday’s decision ought to be an inflection point. Trump has the opportunity to replace Pam Bondi and Makary with strong pro-life figures committed to tackling this issue correctly. The new acting commissioner of the FDA, Kyle Diamantas, has been making phone calls to various major anti-abortion leaders to reassure them of his pro-life bona fides, as well as his commitment to addressing mifepristone. SBA Pro-Life America’s president, Marjorie Dannenfelser, who had repeatedly called for Makary’s firing and has become harshly critical of the president himself, had a “constructive meeting” with Trump at the White House last Friday.

The disappointment of Thursday’s ruling should prompt Trump, clearly eager to mend fences with pro-lifers, to consider more aggressive action: a temporary reinstatement of the in-person dispensing requirement while the health and safety review of mifepristone is ongoing, perhaps limited enforcement of the Comstock Act to stop the flow of mifepristone to pro-life states. The “most pro-life and pro-family president in history” (as his spokeswoman Allison Schuster called him in response to the Court’s decision) should at least do so much.