US Supreme Court stays Fifth Circuit order that would have ended abortion pills by post

On 14 May 2026 the Supreme Court of the United States granted two emergency applications, docketed as 25A1207, Danco Laboratories, LLC v. Louisiana, and 25A1208, GenBioPro v. Louisiana, and stayed an order of the United States Court of Appeals for the Fifth Circuit that would have ended the prescribing of mifepristone by telehealth and its delivery by post across the whole country. The court's docket records that the stay runs until the Fifth Circuit disposes of the appeal in case No. 26-30203 and until any petition for certiorari is resolved. The order carried no reasoning. Justice Clarence Thomas and Justice Samuel Alito each dissented in separate written opinions.

The order the justices froze was issued on 1 May 2026. A unanimous three judge panel of the Fifth Circuit suspended the Food and Drug Administration's 2023 risk evaluation and mitigation strategy for mifepristone, the version of the rules that permits remote prescribing and dispensing by post, and so reimposed a requirement that the drug be handed over in person. The panel held that Louisiana was likely to succeed in showing that the agency had acted arbitrarily and capriciously under the Administrative Procedure Act. Its central point was procedural rather than clinical: the agency had removed most adverse event reporting obligations and then treated the resulting absence of reports as evidence that remote dispensing was safe. The panel also relied on what it described as the agency's own concession that its review suffered from procedural deficits and a lack of adequate consideration.

Louisiana, which bans almost all abortion, filed the case in October 2025 under Attorney General Liz Murrill. The state told the courts that roughly 1,000 unlawful abortions were occurring in Louisiana each month and put its Medicaid emergency care costs from complications at about 92,000 dollars. It also argued that posting the drug is criminal under the Comstock Act of 1873.

The intervening fortnight shows how much turned on procedure. Justice Alito issued an administrative stay on 4 May that was due to lapse at 5pm on 11 May, then extended it to 14 May, when he referred the applications to the full court. Human Rights Watch reported on 5 May that providers had briefly stopped posting the medication in the days after the Fifth Circuit acted. The Supreme Court's docket lists more than thirty amicus filings received inside a week, among them briefs from 259 members of Congress, from former commissioners and acting commissioners of the FDA, from 23 states led by Nebraska in support of Louisiana, and from a group describing itself as 2,794 women injured by abortion.

The dissents were unusually blunt. Justice Thomas wrote that the manufacturers "cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes," resting on his reading of the Comstock Act. Justice Alito called the decision remarkable, noted that the applicants had given only three pages of an 80 page application to irreparable injury, and wrote that "equity demands that profits from unlawful activity be surrendered, not protected." He framed the majority's order as part of a scheme to undermine Dobbs.

What is at stake is measurable. The Guttmacher Institute recorded that 65 per cent of abortions in the United States in 2023 were medication abortions. Its 1 May 2026 news release put telehealth at about one in four abortions; its June 2026 fact sheet, using December 2025 data, put the figure at 29 per cent. The same release stated that in 2025 about 91,000 abortions were provided by telehealth to people in states with total bans, of which 9,350 went to Louisiana. Kelly Baden, the institute's vice president for public policy, called the Fifth Circuit decision the most sweeping threat to abortion since the overturning of Roe v. Wade. Louisiana's filings treat the same traffic as the injury: medicine crossing a border into a state that has outlawed the procedure.

The sources do not agree on everything. Healthcare Dive described the Fifth Circuit as having reversed a 2021 FDA policy; the Guttmacher release and JURIST both located the operative change in the 2023 rules that made the removal of in person dispensing permanent. Both are describing a sequence of amendments rather than a single act.

Three things remain unknown. The Fifth Circuit has not yet decided the merits of the appeal. The FDA's own safety review of mifepristone, which the district court cited in April 2026 when it declined to enjoin the rules and stayed the case, has not reported. And no court in this litigation has yet ruled on whether the Comstock Act, invoked by Justice Thomas and by Louisiana, actually bars the posting of the drug.