This afternoon, the Supreme Court issued a ruling that will keep telehealth abortions legal in the short term.
Nearly two weeks ago, the Fifth Circuit Court of Appeals issued a stay in the case Louisiana vs. FDA that would have effectively banned telehealth abortions. Two producers of chemical abortion drugs, Danco Laboratories and GenBioPro, quickly appealed this ruling to the Supreme Court. After considering legal arguments from both sides, the Court granted the drug manufacturers’ application for a stay of the Fifth Circuit’s decision. So telehealth abortions will remain legal in the short term.
Interestingly, Justices Samuel Alito and Clarence Thomas issued strong dissents. Alito stated, “The Court’s unreasoned order granting stays in this case is remarkable.” In his dissent, Alito stated that the secretary of health and human services “admitted that the FDA gave inadequate consideration to patient safety” when it changed rules governing chemical abortions in 2023. In his dissent, Thomas noted that because of the Comstock Act, it is already a violation of federal law to ship mifepristone for use in abortions. Thomas went on to say that “applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise.”
The case now goes back to the Fifth Circuit. It should be noted that the Fifth Circuit has yet to issue a final ruling on the case. The stay granted by that court earlier this month indicated the judges thought (1) the plaintiffs would prevail, (2) delaying the decision would cause irreparable harm to the plaintiffs, (3) the harm to the plaintiffs is not outweighed by harm to other parties, and (4) the public interest favors a stay. Pro-lifers now have to wait for the Fifth Circuit to issue a final ruling. While there is a good chance the State of Louisiana will prevail at the Fifth Circuit, the final ruling will likely be issued months from now.
As I have said previously, the U.S. Supreme Court will have to deal with the issue of telehealth abortions in the near future. If the Fifth Circuit Court of Appeals rules in favor of Louisiana, that decision will certainly be appealed to the Supreme Court. Furthermore, there are cases against telehealth abortions that are being litigated by state attorneys general in Texas and Florida. Also, the state attorneys general of Idaho, Kansas, and Missouri have joined a revised lawsuit that was filed by the Alliance for Hippocratic Medicine in 2024. These lawsuits make it likely that various circuit courts will reach different decisions, making a Supreme Court case all but inevitable.