A common abortion drug survived a second brush with the Supreme Court, leaving it accessible while justices decide its fate in a future ruling. The Court issued a brief order Thursday evening, which indefinitely blocks a lower court order targeting the drug mifepristone.
Mifepristone survives another Supreme Court scare — for now
Only Thomas and Alito publicly dissented.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The Court’s order in Danco Laboratories v. Louisiana is not permanent, but it will remain in effect until this case is fully litigated, and until the justices have time to fully consider the case. As a practical matter, that likely means that mifepristone will remain available until at least June 2027, assuming that neither Congress nor the Food and Drug Administration attempt to restrict it.
As is often the case when the Supreme Court decides a matter on its “shadow docket,” a mix of emergency motions and other matters that the Court handles on an expedited basis, the Court did not disclose how each justice voted. But Justices Clarence Thomas and Samuel Alito both published dissenting opinions. At least five justices must have voted to block the lower court’s decision.
Danco is the second time the far-right United States Court of Appeals for the Fifth Circuit has attempted to bar access to mifepristone. After their first attempt, in FDA v. Alliance for Hippocratic Medicine (2024), a unanimous Supreme Court concluded that federal courts did not have jurisdiction to hear that case.
As I explain in this piece, very similar jurisdictional problems are present in Danco. So it is not particularly surprising that most of the justices voted to block the Fifth Circuit’s latest order. Still, the current Court did overrule Roe v. Wade, and is typically very hostile to abortion rights. So it is a harrowing event for abortion providers and their patients every time the Supreme Court gets its hands on an abortion-related case.
Technically, the Fifth Circuit’s order in Danco would not have banned mifepristone outright — it merely purported to ban distribution of the drug by mail. But that order struck down the FDA’s rules governing how doctors may prescribe the drug, without replacing them with something else, so it is unclear whether the drug would have remained available if the Supreme Court had not acted as it did.
Both Thomas’s and Alito’s dissents claimed that the pharmaceutical companies that produce mifepristone are something akin to an organized crime ring. Thomas outright called them a “criminal enterprise,” pointing to the Comstock Act, a defunct-but-never-repealed 1873 law that bans a wide range of products related to sex.
Alito, meanwhile, suggested that one of the two drug companies that make mifepristone is engaged in an “unlawful conspiracy” because their product is banned in Louisiana, even though it is legal in many states and was approved for medical use by the FDA.
In any event, neither of these justices’ views carried the day in Danco. At least for the next several months, mifepristone remains legal at the federal level.
