The court blocked a lower court’s effort to ban telehealth prescriptions an delivery of mifepristone
On May 1, the Fifth Circuit Court of Appeals delivered what abortion opponents saw as a major victory. The court blocked the use of telehealth to prescribe mifepristone and banned mail delivery of the drug nationwide, ruling in response to a lawsuit filed by Louisiana. The decision would have made abortion significantly less accessible in all 50 states, not just in Louisiana.
For 36 hours, the ruling stood. Doctors scrambled. Patients panicked. Abortion rights advocates activated contingency plans they had spent years preparing.
Then the Supreme Court intervened. On May 4, the justices issued a one-week emergency stay. On May 14, they issued a longer order allowing telehealth mifepristone prescriptions to continue while the courts worked through the case. That order will likely remain in place for months, possibly until next year, when the Supreme Court might formally hear arguments about whether the Fifth Circuit’s ban should stand.
Why this matters
Nearly two-thirds of abortions performed in the United States now involve medication rather than surgery. About one-quarter of those involve telehealth, with patients consulting physicians remotely and receiving pills by mail. The Fifth Circuit’s decision, if allowed to stand, would have eliminated access to mifepristone across the country, regardless of state law. Even patients in California or Massachusetts, states with strong abortion protections, would have been blocked from obtaining the medication remotely.
The practical effect would have been significant. Abortion rates would likely have dropped, pro-life advocates argued. Access would have become far more difficult, even for patients willing to travel. The ruling represented the most consequential legal victory for the abortion restriction movement since the Supreme Court overturned Roe v. Wade in 2022.
The conservative dissent
Two justices of the Supreme Court dissented from the majority’s decision to allow mail-order mifepristone to continue. Justice Clarence Thomas and Justice Samuel Alito, the two most conservative members of the court, both objected to the order.
Thomas argued that mailing mifepristone violates the Comstock Act, an 1873 law that bars the mail delivery of articles designed to produce abortion. Alito took a different approach, arguing that allowing telehealth providers to mail abortion pills into Louisiana violates the principle established by the 2022 Dobbs decision, which returned abortion regulation to the states.
Neither dissent changed the outcome. The majority issued its order without explanation, as is typical for emergency interventionsin the Supreme Court. No other justices joined the dissents, raising questions about whether a majority would ultimately support banning telehealth mifepristone if the case returns for full briefing and oral arguments.
The backup plans
Even as the legal battle played out in court, abortion rights advocates were executing their contingency strategies. During the 36-hour window when the Fifth Circuit’s ban stood, physicians began shifting from prescribing both mifepristone and misoprostol to prescribing misoprostol alone.
Misoprostol is less effective on its own and has more severe side effects than the two-drug combination. But it is widely used in other countries and carries a crucial advantage for abortion rights advocates. The drug treats multiple medical conditions unrelated to abortion, including ulcers and hemorrhages. That makes it much harder for any law to target specifically without affecting its legitimate medical uses.
Dr. Angel Foster, who runs the Massachusetts Medication Abortion Access Project, told reporters she would continue providing medication abortions by mail regardless of how the courts ruled. She emphasized that the real impact of restrictions would not be to stop abortions but to make them more difficult and uncomfortable for patients. The abortions would still happen, she said. The law would simply punish those seeking them.
The Comstock wildcard
Abortion opponents are pursuing multiple legal strategies simultaneously. Beyond the Louisiana case, states including Florida, Idaho, Kansas, Missouri and Texas have filed their own challenges to mifepristone access. But the strategy drawing the most attention is the push to invoke the Comstock Act.
Anti-abortion activists have met with Trump administration officials, urging the Justice Department to issue a memo declaring the Comstock Act enforceable against abortion pills. Such a memo would require no new legislation from Congress. It would simply instruct federal authorities to prosecute anyone mailing abortion medications.
Enforcing such a law would be logistically impossible. Opening and inspecting all Americans’ mail would be neither feasible nor politically sustainable. However, selective prosecution of a few high-profile cases could create chilling effects. The threat itself, combined with legal uncertainty, might deter enough providers and patients to meaningfully reduce access.
The Justice Department has not committed to pursuing this strategy, though officials acknowledged discussing it with abortion opponents.
What comes next
The Supreme Court will have months to decide whether to formally hear the Louisiana case. If it does, the justices could overturn the Fifth Circuit and allow telehealth mifepristone prescriptions to continue. They could uphold the lower court and ban them nationwide. Or they could split the difference on narrower grounds.
Mary Ziegler, a law professor at the University of California, Davis School of Law who specializes in reproductive rights, described the current situation as a Whac-A-Mole game. Abortion opponents block one access method. Abortion rights advocates find another. Opponents respond with new restrictions. The cycle continues.
Both sides have acknowledged this reality. Pro-lifers have vowed to pursue every available legal avenue. Abortion rights advocates have stockpiled pills and developed alternative methods of delivery. The Supreme Court’s May 14 order has bought time, but it has not resolved the underlying conflict.