The Supreme Court abortion pills case, explained

Abortion pills have been on a bit of a journey in the United States over the past few weeks.

It starts in Louisiana: The state sued the Food and Drug Administration late last year, seeking to eliminate access to the abortion pill mifepristone through telehealth and mail order.

On May 1, the US Fifth Circuit Court of Appeals sided with Louisiana, temporarily blocking access to telehealth abortion and pills by mail nationwide. Then the Supreme Court weighed in; Justice Samuel Alito, a conservative opponent of abortion rights, nonetheless temporarily restored access to the pill by telehealth and mail while the Court considers at the merits of the case.

Now, the Court says it will maintain its stay on the Fifth Circuit’s decision until at least 5pm on Thursday as it deliberates.

To understand the intricacies of the court case and what’s at stake, Today, Explained co-host Sean Rameswaram spoke with Alice Miranda Ollstein, a senior healthcare reporter at Politico.

Below is an excerpt of their conversation, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify.

By the end of the week, could the nature of access to abortion pills across the country change?

Yes. What Louisiana is demanding is that the Supreme Court allow restrictions to go into effect right now, even before the case is finally resolved. Louisiana says that every day that patients in our state can get abortion pills online and get them shipped in — in violation of our state’s ban — is a day we are being injured as a state. They’re claiming sovereign injury.

They say the ability of patients around the country to access these pills by telehealth, to have them prescribed by a doctor online and sent by mail, is helping people in their state circumvent the law. And that’s why they want the Supreme Court to step in and cut that off for everyone nationwide, because it’s a federal policy.

The drugmakers are the ones fighting back against that — the two companies that make this abortion pill. And they say there’s no sovereign injury. You can’t just get rid of a policy for everyone because you don’t like how people are using it.

And they say that this policy has been in effect for several years already. There’s no sudden emergency where you need it banned just now. And thus, the Supreme Court should keep everything the way it currently is while the case works its way through.

Do we have any idea where the Supreme Court stands on abortion pills at this point?

The reading of the tea leaves is always a tricky venture with the Supreme Court. People try to guess based on the questions that were asked at oral arguments. We haven’t even gotten there yet in this case. It’s very hard to know.

Politico hasn’t gotten, like, a leak this time about the decision.

Not on this one. It’s very possible that, once again, they duck the heart of the issue on abortion, on federal power versus state power, and they just say, “Nah, you don’t have standing. You can’t prove that you, the state, are being injured by this policy.”

It seems a little contradictory, right? I mean, the Supreme Court said let the states decide. Years later, you have Louisiana saying, “Hey, ban abortion pills for the entire country.”

What’s interesting here is you really have both sides making a states’ rights argument and saying, “My rights as a state are being infringed upon.” You have Louisiana saying, “Why should other blue states’ liberal abortion policies where anybody can get pills be allowed to invade our state when we’re over here trying to ban abortion?”

They’re basically saying that allowing this anywhere, you know, infringes on their right as a state to prohibit it. Now, of course, as you just articulated, you also have people saying, “Wait a minute, so that means it gets to be restricted for everybody, even people who have laws on the books in their states supporting access to abortion?”

It’s one of those compromises that pleases nobody, because the anti-abortion folks, they are not ever going to be satisfied. They say, “Why should a fetus’s rights end at a state border?” And of course, on the other side, you have folks saying, “Why should a pregnant woman’s rights end at a state border?”

And so this is always going to be a federal fight.

How big a deal have abortion pills become since the Supreme Court overturned Roe v. Wade [in 2022]?

Even before that, they were becoming more and more popular as a method of abortion. And especially since the Covid pandemic, they have become the predominant method that people are choosing in order to terminate their pregnancies.

More than a quarter get them by telehealth. So even if the pills aren’t banned entirely, but telehealth is restricted, that’s going to be a big blow. And it’s not just a big blow to people living in states like Louisiana, where there’s a ban locally and they can’t go to a doctor’s office and get them even if they want to. It’ll impact people in states like California, where there are these huge swaths of the state where it’s very difficult to get to a clinic.

We have medical deserts all around the country, have shortages of providers, and telehealth has really broadened access, including in states where it was already legal and technically accessible on paper, but not in practice.

Let’s say the Supreme Court weighs in on Thursday afternoon, Thursday morning, who knows? If they say no more abortion pills via telehealth, what does this look like in the United States?

We actually got a sneak preview of what it would look like a couple weeks ago.

We had a few days between when the Fifth Circuit ruled for Louisiana and said, “Okay, we’re gonna restrict access to these pills nationwide.” It took the Supreme Court a few days after that to step in and say, “Whoa, whoa, whoa, let’s hit pause. Let’s go back to the way things were. Let’s restore telehealth access while we figure this out.”

In those few days, you saw these providers who prescribe and ship the pills to people living in states with bans make a variety of decisions. Some of these groups immediately paused. Other groups, including some doctors I talked to in Massachusetts, have been preparing for this for years. And so they had a plan already in place to pivot to only providing the second pill of the two-pill abortion regimen.

To have an abortion, you can’t just take mifepristone alone. You have to take it in combination with another pill, misoprostol. You can take misoprostol alone, and that’s actually pretty common in other countries. So these groups, including the ones I talked to, immediately pivoted to only sending misoprostol to patients who are ordering the pills.

So there’s a lot at stake here for abortion access in the United States this week at the Supreme Court. I’m curious how the president of the United States feels about this. Not that he has a say, per se, but has he weighed in?

He has not, and neither has his Justice Department. What was really striking is that the Supreme Court was like, “Okay, we’re gonna step in here and at least decide this case on a temporary basis.”

They heard from Louisiana, they heard from the drug makers, they heard from all of these other people — members of Congress, governors, medical groups, activist groups on all sides, former FDA officials.

Everybody was sending briefs up to the Supreme Court, but you know who didn’t? The Trump administration.

The guy who talks about everything didn’t say anything?

The Trump administration did not weigh in, did not either ask the Supreme Court to maintain the status quo or side with Louisiana. They were silent. The FDA has said it is reviewing the safety of the pills and will make its own decision, so the Trump administration had told lower courts, “Hey, back off, let the FDA do its thing.” But now that the case is before the Supreme Court — nothing to say, silent.