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The Supreme Court on Monday gave itself more time to consider a national ban on telemedicine access to the abortion pill mifepristone.
Justice Samuel Alito extended an earlier order he issued by three more days, so rules for prescribing mifepristone online or through the mail remain in effect through Thursday at a minimum.
The case at issue
The tumult over the future of telemedicine access to mifipristone started on May 1 with a ruling from the U.S. 5th Circuit Court of Appeals. That ruling re-instituted prescribing rules from before the pandemic that required patients to receive mifepristone in person in a doctor’s office or clinic.
The Food and Drug Administration determined that the rule was medically unnecessary in 2021. The state of Louisiana sued last fall, arguing that telemedicine access undermines the state’s abortion ban.
What is telemedicine abortion?
The telemedicine abortion process starts with a patient connecting with a healthcare provider on the phone or online. If the patient is eligible, that provider can prescribe two medications — mifepristone and another pill called misoprostol. Patients can pick up the medicine at a local pharmacy, or providers can mail the drugs to a patient’s home.
That access is a big part of the reason why the number of abortions nationally has actually increased since the Supreme Court overturned the constitutional right to abortion in 2022. Now, most abortions in the U.S. use this combination of medications, and one quarter happen via telemedicine.
After the 5th Circuit ruling, some providers said they would continue offering telemedicine access to abortion medication using a different protocol that involves higher doses of misoprostol and no mifepristone.
Researchers say that method is just as safe and effective, but tends to cause more pain for patients and more side effects, like nausea and diarrhea. Misoprostol has other medical uses, such as treating gastric ulcers and hemorrhage, and has been on the market longer than mifepristone. It is likely to remain fully accessible, even if mifepristone is restricted.
Since the FDA’s prescribing rules for medications apply to the whole country, a change to the rules about how mifepristone can be accessed has national impact. That means it affects states with constitutionally-protected access to abortion, states with criminal bans, like Louisiana, and all states in between.
States’ rights
Nearly two dozen Democratic-led states submitted an amicus brief in this case, writing that the appeals court decision put the policy choices of states with bans above the choices of states “that have made the different but equally sovereign determinations to promote access to abortion care.”
There are also stakes related to the power of FDA and other expert agencies to set rules. While the Trump administration’s FDA did not respond to the Supreme Court’s request for briefs, a group of former leaders of the agency, who served under mainly Democratic and some Republican presidents, wrote about this in an amicus brief.
They defended the FDA’s process in approving the medication and modifying the rules for prescribing it, and say the appeals court decision “would upend FDA’s gold-standard, science-based drug approval system.”
