The Supreme Court stayed a 5th Circuit order that would have ended mail-order mifepristone access, with Thomas invoking the Comstock Act in a notable dissent.
The Supreme Court on May 14 voted to stay a 5th Circuit ruling that would have reinstated in-person dispensing requirements for mifepristone, preserving mail-order and telehealth access to the drug while the underlying appeal proceeds [1]. Justices Clarence Thomas and Samuel Alito dissented from the stay [2]. Thomas wrote separately to argue that the Comstock Act, a 19th-century federal obscenity statute, makes mailing mifepristone a federal criminal offense, a position the majority did not adopt [2].
The stay targets a May 1, 5th Circuit decision that would have unwound FDA accommodations allowing patients to receive mifepristone through telehealth consultations and mail delivery [1]. The case, Danco Laboratories v. Louisiana, centers on challenges brought by Louisiana and aligned parties contesting those FDA access expansions [1]. Danco Laboratories and GenBioPro, both mifepristone manufacturers, are the principal respondents defending the FDA's regulatory posture [1]. The dispute now returns to the 5th Circuit for a merits ruling on the underlying challenges to the FDA's prescribing and distribution rules [2].
The practical stakes are substantial. Telehealth and mail-based dispensing now account for approximately 25 percent of abortions performed nationally, and allowing the 5th Circuit order to take immediate effect would have disrupted access across multiple states without a final adjudication on the merits [1]. By granting the stay, the Court signaled, at minimum, that the challengers face serious questions about whether they have standing and whether the FDA acted within its authority, the two threshold issues that sank a prior mifepristone challenge before the Court in 2024.
Thomas's Comstock Act argument carries longer-term significance independent of this case's immediate outcome. The Act, enacted in 1873 and largely dormant for decades, broadly prohibits mailing items used to cause abortion [2]. Thomas's invocation of it in a formal dissent places the theory inside the Court's official record and may accelerate future litigation pressing the federal government, or private litigants, to enforce it. No administration has sought to activate the statute against mifepristone dispensers, but Thomas's framing sharpens the legal argument for any party that wishes to do so.
The 5th Circuit must now resolve the merits of Louisiana's challenge. If that court again rules against the FDA, a return to the Supreme Court for full briefing and argument becomes likely, converting what has been a shadow-docket dispute into a plenary review of federal medication abortion law.