The Supreme Court stayed a Fifth Circuit order reinstating in-person mifepristone rules, preserving telehealth access while signaling Comstock Act tensions ahead.
The Supreme Court on May 14 issued a stay of a Fifth Circuit order that had reinstated in-person dispensing requirements for mifepristone, preserving telehealth prescriptions and mail delivery of the drug while litigation continues [1]. The stay came as an unsigned, unexplained order, a format consistent with the Court's shadow docket practice [3]. Justices Clarence Thomas and Samuel Alito dissented. Thomas went further, writing separately that he views the mailing of mifepristone as a criminal offense under the Comstock Act, a 19th-century federal obscenity statute [3].
The procedural sequence that prompted the emergency application began on May 1, when the Fifth U.S. Circuit Court of Appeals reversed the Food and Drug Administration's 2023 rule permitting telehealth prescriptions and mail dispensing of mifepristone [2]. That reversal was abrupt enough that manufacturers Danco Laboratories and GenBioPro moved immediately for emergency relief at the Supreme Court [2]. The applicants argued that reimposing in-person requirements without warning would cause immediate and irreparable disruption to patients and providers nationwide [1].
The substantive stakes are significant. Mifepristone is the most widely used abortion drug in the United States, and telehealth-prescribed medication abortion accounts for roughly 25% of all U.S. abortions [1]. By staying the Fifth Circuit's order, the Court preserved the status quo that has existed since the FDA's 2023 regulatory action, while stopping short of any ruling on the merits. The majority's silence, typical of shadow docket stays, leaves FDA's underlying authority over drug dispensing conditions unresolved [3]. Thomas's Comstock Act statement, though not controlling, is notable because it advances a legal theory that, if adopted by a majority, would reach well beyond mifepristone to affect the mailing of other abortion-related materials [3].
The case now returns to the Fifth Circuit for full merits review [2]. Given the circuit court's May 1 decision and the Supreme Court's decision to intervene even before merits briefing concluded, another petition to the Supreme Court is expected once the Fifth Circuit issues a final ruling. The Court's composition and its recent administrative law decisions suggest the merits phase will draw close scrutiny on the scope of FDA rulemaking authority, the continued vitality of Chevron-era deference principles, and the unresolved question of whether the Comstock Act constrains federal drug distribution rules [3].