Name: WSJ Opinion: The Abortion Pill Mifepristone Comes Back to the Supreme Court
Uploaded: 2026-05-05T20:15:00Z
Duration: 19 min 38 s
Description: Federal regulations permit the drug to be dispensed by mail without a doctor's visit, but after an appeals court rules against that policy, Justice Samuel Alito halts any change until the Supreme Court can consider it. Plus, does mifepristone by mail present concerns that women might be privately coerced into taking it?

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Federal regulations permit the drug to be dispensed by mail without a doctor's visit, but after an appeals court rules against that policy, Justice Samuel Alito halts any change until the Supreme Court can consider it. Plus, does mifepristone by mail present concerns that women might be privately coerced into taking it? Photo: Christopher Arbisi

https://m.wsj.net/video/20260505/1cb8f07d-eb29-436f-a79b-9fe1b7970bd8/2/hls/manifest-hd-wifi.m3u8

Federal regulations permit the drug to be dispensed by mail without a doctor's visit, but after an appeals court rules against that policy, Justice Samuel Alito halts any change until the Supreme Court can consider it. Plus, does mifepristone by mail present concerns that women might be privately coerced into taking it?

WSJ Opinion: The Abortion Pill Mifepristone Comes Back to the Supreme Court

A Federal Appeals Court effectively tightens the dispensing rules on the abortion pill Mifepristone, halting a 2023 regulation that let the drug be prescribed by mail without a doctor's visit. But Justice Samuel Alito has already put a temporary pause on that lower court decision, and there's no telling what the full Supreme Court might do next.

From the Opinion pages of "The Wall Street Journal", this is "Potomac Watch".

Welcome, I'm Kyle Peterson with "The Wall Street Journal". We're joined today by my colleagues on the WSJ's Opinion pages, Allysia Finley and Sierra Dawn McClain. The debate over Mifepristone goes back years and by now includes piles of litigation, briefs, and rulings. But the latest on Friday was from the Fifth Circuit US Court of Appeals, a unanimous panel, three judge panel, opinion by Judge Stewart Kyle Duncan, staying a 2023 regulation that formalized a COVID-era relaxation of the Mifepristone dispensing rules. Allysia, what do you make of this ruling and the legal merits of the case?

So, I think this is different than the case that went up to the Supreme Court a couple of years ago, challenging in part some of the same restrictions or easing of the restrictions. And just to clarify, what happened a couple of years ago was you had some pro-life groups and physicians challenge the FDA's one, authorization of the drug, which goes back to 2000, and two, easing of regulations on its dispensing, first in 2016 and then again in 2021 in response to the COVID pandemic, and a judge's ruling then. And the 2023 changes essentially formalized those that were in 2021. And those changes were to allow women to access or get the abortion pill by telemedicine. So, they didn't have to be in-person, they didn't have to pick up the drug and have a pharmacist and a doctor counsel them how to take it, et cetera, et cetera. You could get it essentially virtually or online. And now this case that is before the court today is simply challenging this 2023 codification, well, regulatory codification, of the 2021 easing of the restrictions. Now, they're not challenging the 2016 easing of the restrictions which ease who could actually prescribe the drug, in part because there seems to be a statute of limitations for challenging under the APA, which is the law that the state, Louisiana here, and a woman who claims she was abused and forced to take the drug against her will, are challenging.

That 2024 case at the Supreme Court was the FDA vs. the Alliance for Hippocratic Medicine and the unanimous justices agreed that the plaintiffs in that case, the petitioners, did not have standing, did not have a legal right to challenge the FDA's rules, including the broad effort to overturn the approval of Mifepristone back in the year 2000. Allysia, will this new case also maybe turn on standing? I mean, the State is the plaintiff that was found to have standing by the Fifth Circuit, in part because it is claiming to have a monetary injury. So, here is part of the Fifth Circuit ruling, "Louisiana identifies $92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state Mifepristone. Such costs will almost certainly continue." Allysia, is that a standing argument that is more likely to get traction with the justices given again, the unanimous ruling in 2024 that pro-life doctors and so forth, the Alliance of Hippocratic Medicine, did not have the standing right to challenge the FDA's dispensing rules?

Well, in 2024, I think the justices' rule that the standing, or at least the majority of justices' rule that the standing was just too attenuating. And by standing, we mean a concrete and imminent injury that is particularized to essentially an individual and directly results from a government action. And the Supreme Court ruled there that while you couldn't necessarily trace these all very speculative and putative injuries that doctors would, for instance, have to pay higher medical malpractice insurance because they would have to be seeing more women who were experiencing emergencies because they were prescribed or incorrectly prescribed Mifepristone or they experienced side effects because of that and had to go to the emergency rooms and somehow their medical malpractice insurance would increase. I think the court rightly held there that that trace, the lineage of events or tracing those events, it's way too speculative to meet the court's typical standing thresholds. Not only that, some of the pro-life doctors couldn't really show that they would be forced to participate in an abortion 'cause they received religious conscientious objections and protections. But here, the standing argument is a little different. As you said, Louisiana claims that about 1,000 women are receiving abortion, these Mifepristone pills in the mail from out of state, violating its laws, and it claims that its sovereignty is being violated and that's one of its standing arguments, and the other is the financial argument, that it claimed some of these women will experience some kind of emergencies, purely based on the FDA's estimates, you know, 2-3% at least, or will go to the emergency room, some of them will be covered by Medicaid and such, and therefore Louisiana will bear some kind of financial injury. Now, I think one could argue that that's still somewhat attenuated, but in other cases that have come before the court, I think the court has indulged that kind of a claim or standing claim, and maybe not indulge is quite the right word, but has accepted that kind of claim and has accepted that too from Democratic states challenging all kinds of regulations or changes in law. So, I think just on a purely consistency basis, I think that it would be strong enough to actually justify then going to the merits of the case.

And on the merits, in the meantime, the FDA under director Marty Makary has reportedly launched some kind of new review process of these Mifepristone rules and in some ways that the Fifth Circuit thinks are casting doubt on what the previous administration did in this 2023 relaxation of the dispensing procedures.

Well, that's right, the FDA has already basically said and acknowledged to the court, well, we don't think that they actually met the scientific standards, they did a slap dash review and we agree with the plaintiffs that they need to be reviewed again and we are planning to do that. The problem is the FDA hasn't really given an end date, it doesn't say how long the process is gonna take. So, it could completely game this litigation process and not actually take action or really complete a review. And maybe you'd give the benefit of the doubt because this is the Trump administration but a lot of conservatives definitely wouldn't do that if this were the Biden administration making a similar claim in court.

The other moving piece here is of course the United States Supreme Court, Justice Samuel Alito has now issued an administrative pause of this Fifth Circuit ruling, changing the dispensing rules. The appeal, the emergency appeal went first to Justice Samuel Alito simply because he is the Circuit Justice for the Fifth Circuit. So, appeals from the Fifth Circuit go initially to Justice Alito's chambers. Sometimes the justice will put an administrative hold on a lower court ruling simply to give time for that justice to consult the other eight colleagues and figure out how the full court might want to respond to that kind of an emergency request. And so, Allysia, we don't know exactly what's gonna happen. Maybe the full court will issue some kind of stay or it could say that it's going to take this case and have an oral argument on it, it could add it to the court's docket and give us another Supreme Court case this term. I'm not predicting that, but it's just hard to predict the freedom of movement that the justices have. In the meantime though, another, quote, unquote, "shadow docket" case, an emergency move here by the Supreme Court, staying something that the lower courts have done, but in a way that critics of the Supreme Court on the left might be a bit more happy with to see the Supreme Court weigh in here.

Right, so what's interesting is actually the District Court initially stayed its decision, said that they were likely to prevail the plaintiffs who were likely to prevail on the merits, but we're gonna stay our decision until the FDA completes its review. And the Fifth Circuit basically said, "Not so fast, we don't really trust the FDA here. We're gonna stay it," and said, you know, "We're gonna kick this up to the Supreme Court. Maybe they'll overrule us, but we're gonna stay it in the state," nationwide because this does have nationwide implications, there really is no way to carve out or do a more limited order because it affects so many states, you know, telemedicine providers in different states and how the pill is shipped and such. Now, I have a real difficult time reading the tea leaves on how the court is going to handle this because there are, obviously, there's the merits dispute but there's also the standing issue. And then there's the question of whether the court should even intervene at this point or just let a lower court order stand and let this again get reviewed and percolate through the lower courts 'cause this isn't the only case challenging the 2023 easing of the dispensing regulations. There are actually others and other district courts and district courts, mainly, percolating and maybe the Supreme Court just decides to let those come up before it decides to hear the process. But on the other hand, it could just decide that this is a somewhat disruptive stay in terms of that many women and many providers had been providing this through telemedicine. Until the merits and all this is actually worked out, we're gonna stay the Fifth Circuit's stay.

And the mystery of the FDA's timeline for its review also complicating that choice for the justices because they could take a case and put it on the docket and then the FDA could come out a week later and say, "Actually, we are undoing those 2023 rules." Which means that the Supreme Court case would then kind of evaporate, it would become moot if the FDA has changed its dispensing procedures. So, unlike the 2024 case where we did have a ruling from the Supreme Court after briefing, it's not even clear to me, Allysia, that this case, that this one is going to result in a final resolution by the Supreme Court because it may be that the FDA makes the case go away before the justices even get there.

Yeah, maybe, it's hard to, again, it's hard to read the tea leaves. Marty Makary had reportedly ordered the review to be slow walked in December until well after midterm reviews, I think there are people, dueling political minds of some worry that this, basically reversing these 2023 regulations and making it harder for women to get the pill could hurt Republicans in the midterms 'cause Democrats are gonna attack them on the issue. You know, I kind of view that they're probably gonna attack them on the issue regardless. But there are others who say that the FDA's failure to do anything on this is just demoralizing pro-life Republicans and a lot of these, a core conservative constituency that they need to turn out. So while we'd like to think that this whole process is being guided by science and regulatory concerns and all of that, I have a suspicion it's very much being motivated, influenced by the politics behind the scenes.

Let's turn now to another aspect of this case and the debate over Mifepristone, welcoming now to join us, Sierra Dawn McClain. Sierra, you've written about this Fifth Circuit decision in an op-ed today in "The Journal" under the headline "Mifepristone as a Tool of Coercion". And you spoke with one of the plaintiffs in this case alongside Louisiana, what did she tell you?

Yeah, she alleges that in 2023 her boyfriend ordered abortion drugs through the mail from an out-of-state telemedical provider and then while she was sitting in a car with him, he pressured her to take them, saying that she would ruin his life if she refused. She felt afraid that he might physically harm her if she didn't take them and so she did in fact take the abortion pills, and later regretted it and was very sad that she made that decision.

And she is a resident of Louisiana?

That's right.

And these drugs coming from a physician in California, so that has created some legal conflict between the states, even outside of this case, between states that do not permit the prescribing of Mifepristone to patients within their borders, and in states that are now sending it through the mail to patients in those states. How common do you think in your reporting this worry about coercion is?

Yeah, I first had this on my radar back in October of last year when I came across a case of alleged coercion or abuse and just started doing some digging by placing public records requests, looking at court records from across the country, and came across a lot of such claims. I wrote about four of them in this piece, but there are many more that I came across as well. Just to tell you details about a few of them that I wrote about. There were a few different criminal cases in which grand juries in different states indicted men who are defendants, of, in one instance, a Texas man was indicted by a grand jury on charges of attempted capital murder. And the indictment alleges that he gave his girlfriend cookies that contained abortion-inducing medication with the intent of killing her unborn child. Investigators in that case allege that the woman told them that she had told the man in advance that she wanted to keep her baby and he had suggested ordering abortion drugs through the mail. His lawyers say he maintains his innocence. And in other such cases, in Illinois, there was a man who faces intentional homicide charges for allegedly administering abortion drugs to his girlfriend without her knowledge or consent, so a similar instance. Police say they found the girlfriend in a bathroom crying next to what a police officer suspected to be blood and a human fetus in a toilet. And again, the man there also pleaded not guilty. But these are just a few of many more such cases and such claims that we are seeing across the country.

And these are criminal cases where the defendant, who again has pleaded not guilty, is alleged to have given the drug to the woman, the girlfriend, unknowingly. Which is a different category maybe from what we're talking about with respect to the Louisiana case, where there's coercion, but the patient is still taking the drug herself.

Right, so there are two different case types that are concerning, if in fact the allegations are true. One of which is cases of abuse. You know, when someone is actually forced or coerced into taking a drug. And then separately, cases of deception when again, allegedly, a man may put an abortion drug into a woman's food or drink without her knowledge and then she consumes that and then has the abortion, again, according to the allegations.

So, as the FDA does this review of the 2023 relaxation of the prescribing rule, is this question of potential coercion something that you think should be on the FDA's radar and part of this review, or is it going to be part of this review?

It's definitely on their radar, I'll start by saying that. I'm gonna read a quote here from Marty Makary, the commissioner of FDA, he says, "I know personally of OB doctors who prefer to insist, even though they have the option to prescribe otherwise, but they choose to insist that Mifepristone be taken when necessary in their office as they observe the person taking it. I think their concern is that if this drug is in the wrong hands, it could be used for coercion." And he said that during a Senate hearing last year, so it's definitely on their radar. The separate question is whether they're actually going to take those possible downstream effects of coercion and abuse into consideration in the review. And the short answer to that is, we don't know. I asked the FDA directly and was told by the press secretary that the FDA will tell us what factors they're considering in their safety review after they've released it. So, the short answer is we don't know, but I hope that they will consider these possible downstream effects in their review.

Of course, as a result of the administrative stay now by Justice Samuel Alito, the prescribing rules, the old ones, are back into effect. We don't know what the Supreme Court will do next or how this might end up on their docket, but no doubt the reviewers of the FDA are aware of all this litigation going on. And do you suppose that that may cause them to pick up the pace on this review?

I wouldn't be surprised, it's not only the Fifth Circuit Court, but also a ruling in April prompted the FDA to pick up their pace on this safety review as they've been dragging their feet. So, hopefully we will see a little bit more from the FDA soon.

Thank you, Sierra and Allysia, thank you all for listening. You can email us at pwpodcast@wsj.com. If you like the show, please hit that subscribe button and we'll be back tomorrow with another edition of "Potomac Watch".

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