Pro-lifers experienced a massive legal whiplash this month.
On May 1, the Fifth US Circuit Court of Appeals gave the pro-life movement what some legal experts called their most “consequential” legal victory since the overturn of Roe v. Wade in 2022. Delivering a verdict in a lawsuit brought by the state of Louisiana against the Food and Drug Administration, the Fifth Circuit banned mifepristone from telehealth prescriptions—that is, from being prescribed via phone or online rather than in person.
Even if the Fifth Circuit’s ruling had applied only to the state of Louisiana, it would have still been a significant decision, because Louisiana, along with other states with abortion bans, has found it very difficult to enforce its abortion restrictions on out-of-state abortion providers prescribing remotely.
But the Fifth Circuit’s ruling did not apply only to Louisiana: It was a nationwide injunction. That meant even in the states with the most permissive abortion policies, such as California or Massachusetts, remote abortion providers were banned from prescribing mifepristone remotely.
If this ruling had been allowed to stand, it would have made abortion significantly less accessible, and it would have likely reduced abortion rates. Chemical abortions—that is, abortions that occur through the use of pills such as mifepristone or misoprostol—account for 65 percent of abortions in the United States, so even a modest decrease in the use of mifepristone could have potentially saved a lot of unborn lives.
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But this is not what happened. A mifepristone manufacturer asked the Supreme Court for an immediate stay of the Fifth Circuit’s ruling. The high court granted this request, first with a one-week stay issued on May 4 and then with a long-term stay issued on May 14.
The Supreme Court’s May 14 order means telehealth mifepristone prescriptions will continue for months. The order will not be lifted until the court formally hears an appeal of the Fifth Circuit’s decision and issues a ruling, which will likely not occur until next year.
Pro-lifers can take some comfort in the court’s suggestion that it would hear the appeal. That could in theory position the court to deliver a major victory for pro-lifers next year—one that could not be easily overturned. But there are also reasons to fear that when the court hears the case, it will not uphold Louisiana’s ban on remote prescriptions of mifepristone.
Only two justices—Clarence Thomas and Samuel Alito—dissented from the Supreme Court’s May 14 order to allow telehealth prescriptions of mifepristone to proceed. While presumably they could be counted on to vote against the mifepristone providers in the case next year, it’s not clear at least three other justices would join them, since no other justices joined their dissents this time around.
Thomas and Alito gave different justifications for dissenting from their colleagues’ decision to allow remote prescriptions of mifepristone to proceed.
Thomas argued that distributing mifepristone through the US mail violates the Comstock Act, an 1873 law that, among other things, prohibits mailing “every article or thing designed, adapted, or intended for producing abortion.”
Parts of the Comstock Act were overturned in the 20th century, and whether the part of the law that pertains to articles “producing abortion” can be enforced is debated among legal scholars and has not been fully tested in court. Thomas, at least, appears to believe it is enforceable, but whether any other justices agree remains to be seen.
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Alito’s dissent made a different argument: The court’s refusal to grant Louisiana’s request to stop telehealth abortion providers from sending mifepristone into the state violates a key principle of Dobbs v. Jackson Women’s Health Organization (the 2022 case that overturned Roe v. Wade). Dobbs gave states the power to restrict abortion, but the court’s order on May 14 deprives states of this power when it comes to remote prescriptions of mifepristone.
Regardless of the legal merits of Alito’s dissent, it points out an obvious political reality: Pro-lifers’ expectation that overturning Roe v. Wade would give states the freedom to ban abortion has not been fully realized. As the situation currently stands, state governments do not seem to have the ability to stop telehealth providers from mailing abortion pills to patients in their state, regardless of what pro-life laws may be on the books.
Even though the Roe v. Wade overturn was four years ago, the current legal landscape resembles the situation that existed before 2022, when states were prohibited from banning abortion within their borders.
The Supreme Court will have an opportunity to change that next year. So will the Food and Drug Administration. But whether either of them will choose to do so remains doubtful. So far, at least for the moment, they have chosen to keep the mifepristone floodgates open.
Daniel K. Williams is an associate professor of history at Ashland University and the author of Abortion and America’s Churches.
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