Supreme Court Votes 7–2 to Keep Mifepristone Telehealth Access — Thomas Invokes Comstock Act in Dissent

The U.S. Supreme Court voted 7–2 on Thursday to keep mifepristone available through telehealth appointments and mail-order pharmacies, blocking a Fifth Circuit ruling that would have restored a nationwide in-person prescription requirement that predates the pandemic.

The order, issued in Danco Laboratories, LLC v. Louisiana, No. 25A1207, carries no reasoning — standard practice for an emergency stay application. Justices Samuel Alito and Clarence Thomas each wrote separately in dissent. Alito’s dissent accused the majority of perpetrating a “scheme to undermine” the court’s own Dobbs decision. Thomas invoked the Comstock Act of 1873 and argued that shipping mifepristone for use in abortions is already a federal crime, making the drugmakers, in his framing, participants in a “criminal enterprise” who cannot claim irreparable harm from a court order.

The ruling preserves the status quo while the litigation returns to the U.S. Court of Appeals for the Fifth Circuit, which will now hear the full merits of Louisiana’s challenge to the FDA’s 2023 telehealth authorization. Nothing has been resolved on the substance. The question of whether a federal appeals court can rewrite the FDA’s prescribing rules for an approved drug is going back to New Orleans — but it’s going back with the drug still on the shelf.

What the Order Does

The Supreme Court’s stay blocks the Fifth Circuit’s May 1 ruling in full. That ruling had reinstated prescribing requirements from before the pandemic: patients would have had to obtain mifepristone in person at a clinic or doctor’s office rather than through a video appointment and a pharmacy shipment.

The May 1 Fifth Circuit ruling applied nationally. Telehealth providers in New York, California, and Colorado would have been subject to the same restrictions as providers in states with total abortion bans — a dimension of the ruling that drew immediate attention from reproductive health advocates when it landed two weeks ago.

Thursday’s Supreme Court order erases that ruling while the merits proceed. Providers can continue writing telehealth prescriptions. Patients can continue receiving the medication by mail or picking it up at a retail pharmacy. The FDA’s 2023 regulatory changes, which formally ended the original in-person requirement, remain operative.

The court issued no explanation of how it weighed the stay factors — likelihood of success on the merits, irreparable harm, balance of equities, the public interest. That is normal for emergency applications but consequential given the scope: this is not a narrow procedural dispute. The question of whether the FDA’s 2023 rule can survive a state’s standing to challenge it reaches into how federal drug approval authority interacts with state abortion law. Seven justices agreed that the stay factors cut in favor of preserving access while the case proceeds — that is not the same as seven justices believing the FDA was right.

The Dissents: Comstock and Dobbs

Alito’s dissent was direct. He argued that “the court’s unreasoned order granting stays in this case is remarkable,” and identified the stakes as he sees them: “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), which restored the right of each State to decide how to regulate abortions within its borders.”

The framing matters because Alito wrote Dobbs. He is accusing his own court of working against his most consequential opinion by preserving access to a medication that functions as an alternative to surgical abortion in the first ten weeks of pregnancy. His dissent implies that keeping mifepristone accessible nationally is itself a circumvention of the state-by-state framework he authored in 2022.

Thomas took a different angle — one with potentially larger implications beyond this case. He wrote separately to argue that the case doesn’t hinge only on FDA authority or state standing: “I write separately to note that, as Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using ‘the mails’ to ship any ‘drug … for producing abortion.’”

The Comstock Act is a federal statute from 1873 that was never formally repealed. For decades it was treated as a dead letter — the Biden Justice Department issued a 2022 opinion finding it did not prohibit mailing mifepristone because the law required criminal intent to violate a state prohibition. Thomas is challenging that interpretation directly. His dissent argues that Danco Laboratories, the manufacturer of Mifeprex, “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”

Thomas’s Comstock argument was not adopted by the court Thursday and is not the legal basis for the Fifth Circuit’s underlying ruling. But the fact that a sitting justice has now articulated it in a published dissent ensures it will continue appearing in filings across multiple circuits. The argument — that federal mail law already prohibits the distribution chain the FDA authorized in 2023 — is structurally broader than Louisiana’s standing claim, and considerably harder to resolve on administrative law grounds.

How the Case Got Here

Louisiana filed suit against the FDA in October 2025, arguing that the agency’s 2023 decision to drop the in-person prescription requirement was not adequately supported by safety data and impaired the state’s ability to enforce its abortion ban. The case was assigned to a district court in the Western District of Louisiana.

The district court initially stayed the case while the FDA conducted a review of the challenged rules — meaning the in-person requirement remained lifted through the winter. The Fifth Circuit overturned that pause on May 1, issuing a ruling that reinstated pre-pandemic prescribing requirements immediately and applied them nationwide. Danco Laboratories and the FDA filed emergency Supreme Court applications within 24 hours.

Justice Alito issued a temporary administrative stay on May 4, pausing the Fifth Circuit’s order for one week. On May 11, with the week expiring, he extended the stay through May 14 — the Thursday deadline that fell squarely in acting FDA commissioner Kyle Diamantas’s first week in office. The full court took up the applications Thursday and voted 7–2 to grant the stay pending the Fifth Circuit’s full merits proceedings.

What Changes Now

For patients: Nothing changes today. Telehealth appointments for mifepristone prescriptions continue operating as they have since 2023. Mail delivery and retail pharmacy dispensing remain available in states where abortion is legal. The stay covers the entire country, not specific states.

For providers: No operational changes are required. Telehealth providers who have been prescribing mifepristone remotely can continue doing so under the FDA’s existing REMS framework.

For the FDA: The agency — now led by acting commissioner Diamantas, a food-law attorney who took office after Marty Makary’s resignation last week — must mount a defense of the 2023 telehealth authorization on the merits before the Fifth Circuit. That is a different posture from maintaining a procedural stay. The Diamantas-led FDA will need to articulate a substantive legal argument for why the agency acted appropriately when it revised the prescribing rules. The timeline for the Fifth Circuit merits proceedings has not been set; complex administrative law cases before that court have taken anywhere from six months to two years to resolve.

For the litigation: The stay is not a final ruling. By granting it, seven justices indicated that the balance of factors favored preserving access during the pendency of the appeal — not that the FDA’s rule is legally correct. If the Fifth Circuit rules against the FDA again on the merits, the case will almost certainly return to the Supreme Court, this time for full briefing and argument rather than an emergency application. The Thomas and Alito dissents will be in the record when that happens.

The Scale of What’s at Stake

Roughly one in four abortions in the United States were provided through telehealth in 2025, according to the Society of Family Planning, a reproductive health research organization — up from fewer than one in ten in 2022, the year before the FDA’s revised prescribing rules took full effect. That share includes patients in states where abortion is legal, not just those seeking services across state lines.

The Fifth Circuit’s May 1 ruling would have cut off the telehealth channel for all of them, not just patients in Louisiana. Thursday’s order keeps that channel open. How long it stays open — and under what legal framework — depends on proceedings that are likely to occupy federal courts for at least the next year, and that may ultimately require the Supreme Court to answer questions about FDA authority, state standing, and the Comstock Act that seven justices declined to reach on Thursday.