The Supreme Court blocked a 5th Circuit order that would have reinstated in-person mifepristone dispensing rules, with Thomas invoking the Comstock Act in dissent.
The Supreme Court on May 14, 2026, granted a stay blocking a 5th Circuit order that would have reinstated in-person dispensing requirements for mifepristone, keeping mail-order access to the abortion pill in place while litigation proceeds [1]. The Court acted on its emergency docket without a written majority opinion, though Justices Clarence Thomas and Samuel Alito each dissented [1]. Thomas, in his dissent, invoked the Comstock Act, arguing that the pharmaceutical companies seeking the stay were not entitled to relief on the basis of lost profits [1].
The case, Danco Laboratories v. Louisiana, arrives at the Court as a successor to the mifepristone litigation the Court dismissed in 2024 on standing grounds [2]. Louisiana, represented by its Attorney General's Office, advanced a new theory: that it has standing as a state to challenge FDA approval conditions because federal access rules conflict with its own abortion law [2]. The 5th Circuit accepted that theory and reinstated the in-person requirement, prompting Danco Laboratories and GenBioPro, the drug's manufacturers, to seek emergency relief from the Supreme Court [1]. The case does not involve the Alliance Defending Freedom, which was the primary plaintiff in the earlier round of mifepristone litigation [2].
The significance of Louisiana's standing theory cannot be overstated in FDA regulatory terms. If courts ultimately accept the argument that a state may challenge FDA drug approval conditions by pointing to conflicts with state law, the ruling would open a new channel for states to litigate federal drug access rules, potentially across a wide range of pharmaceuticals, not only abortion-related medications [2]. Thomas's Comstock Act reference, though appearing in a dissent, signals that at least one Justice views the 19th-century anti-obscenity statute as a live vehicle for imposing sweeping federal restrictions on abortion pill distribution [1].
The stay is temporary and leaves the merits unresolved. The case will return to the lower courts for further proceedings on the standing and merits questions, and the Supreme Court may ultimately be asked to rule on whether Louisiana's theory survives [1]. Observers will watch closely whether the full Court addresses the Comstock Act question, which the majority did not reach in granting the stay [1].