It represents the best opportunity for pro-lifers to place legal limits on telehealth abortions.
Last week, the Fifth Circuit Court of Appeals heard oral arguments in State of Louisiana v. FDA. This is one of the most important court cases involving sanctity of life issues that is taking place this year. That is because it represents the best opportunity for pro-lifers to place legal limits on telehealth abortions.
Before the Covid-19 pandemic, women seeking chemical abortions had to have an in-person exam from a health-care professional. However, during the pandemic, the FDA changed the rules and began to allow women to obtain chemical abortion drugs through the mail — without an in-person medical exam.
Both the Biden and Trump administrations have continued this unwise policy after the conclusion of the pandemic. Unsurprisingly, the number of telehealth abortions has skyrocketed. The most recent estimates from the Society of Family Planning indicate that 28 percent of all abortions are done by telehealth. This represents more than 300,000 abortions annually. Telehealth abortions are undermining many of the strong state-level pro-life laws that have been enacted since the Dobbs decision
Even though the Trump administration FDA could restore pre-Covid rules regarding chemical abortions, they have been unwilling to do so. So pro-lifers have turned to litigation as a strategy. In 2024, the Supreme Court heard oral arguments in FDA v. Alliance for Hippocratic Medicine. The Court ruled against the plaintiffs, stating that the group of pro-life physicians lacked standing.
However, the State of Louisiana has some arguments regarding standing that judges might find persuasive. Louisiana officials have argued that telehealth abortions violate their state sovereignty because the practice makes it difficult to enforce their legal protections for preborn children. They have also argued that their state Medicaid program has incurred costs because it covers women who have suffered injuries from telehealth abortions.
There are some reasons for optimism. Back in May, the Fifth Circuit Court of Appeals issued a stay in the case that briefly halted the mailing of chemical abortion drugs. The stay indicated that 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. However, the Supreme Court effectively struck down the stay later that month — with strong dissents written by Justices Thomas and Alito.
The Supreme Court does not appear eager to engage the issue of telehealth abortion. However, the Louisiana case is one of multiple cases involving telehealth abortion that is being considered by lower courts. There are separate cases involving 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. There is a good chance that various circuit courts will reach different decisions, making a Supreme Court case all but inevitable.