Next month marks the four-year anniversary of Dobbs v. Jackson Women’s Health Organization, the landmark decision where the Supreme Court overturned Roe v. Wade and eliminated the constitutional right to obtain an abortion. Many Americans wondered at the time whether the court would stop there, or whether it would go further in future cases to eradicate the practice nationwide.
For now, the answer appears to be the former. On Thursday, the Supreme Court lifted a lower-court stay that had blocked nationwide distribution by mail of mifepristone, the most widely used abortion drug, pending further litigation. In doing so, the court’s conservative majority may have signaled that it would take no active part in further restricting abortion access throughout the nation.
Thirteen states currently ban abortion at any point in a pregnancy, according to the Guttmacher Institute, while an additional seven states ban it at some point before the first 18 weeks of gestation. One of those twenty states is Louisiana, which has been among the most aggressive in the Union towards outlawing abortion. It is a felony offense to provide abortion drugs to someone in Louisiana.
Until recently, patients who sought mifepristone had to obtain it in person from a pharmacy after getting a prescription. The Food and Drug Administration changed the regulatory requirements in 2023—after Dobbs, it should be noted—to allow the drug to be distributed by mail instead. The Trump administration has also opened a formal review of mifepristone regulations in general, though it is not clear when it will conclude or what changes (if any) it will seek.
Last October, Louisiana also filed a federal lawsuit against the FDA to challenge the legality of the 2023 rule change. The state claimed that the agency had relied upon flawed data when making the change and argued that the new rule had led to illegal abortions in Louisiana. The FDA countered that it was reviewing mifepristone’s regulatory status, but argued that the status quo should remain in effect while that review takes place. Two of the drug’s manufacturers, Danco Laboratories and GenBioPro, also intervened in the lawsuit on the FDA’s side.
A federal district court in Louisiana partially sided with the state in April by ruling that it had standing to challenge the 2023 rule change and that it was likely to prevail on the merits. At the same time, the court not only declined to enjoin the FDA’s 2023 rules in deference to the agency’s ongoing review, but it also stayed the litigation altogether until that review was complete. Louisiana immediately appealed that decision to the Fifth Circuit Court of Appeals.
Earlier this month, a three-judge appeals panel sided with the state and vacated the 2023 rules. The panel said that the lower court had gotten the basics of the case right—indeed, there is little daylight between Louisiana and the FDA on the merits of the 2023 rules—but gotten it wrong on balancing the equities between the parties. The Fifth Circuit instead concluded that Louisiana’s interest in criminalizing abortion outweighed the FDA’s interests in keeping the rule intact while reviewing it.
“Neither the FDA nor the public has any interest in enforcing a regulation that violates federal law,” the panel wrote. “We have now three times found that the agency’s progressive relaxation of mifepristone’s guardrails likely lacked a basis in data and scientific literature. FDA itself now concedes the regulations were marred by ‘procedural deficits’ and a ‘lack of adequate consideration.’”
Indeed, federal courts in the Fifth Circuit’s jurisdiction have heard multiple mifepristone-related lawsuits from anti-abortion activists in recent years. They sought to overturn the FDA’s original approval of the drug in 2000, as well as some updated rules in the years that followed that made it more widely available. But the Supreme Court shut down that litigation in the 2024 case FDA v. Alliance for Hippocratic Medicine, where they unanimously held that the plaintiffs lacked standing.
The FDA did not appeal this particular stay; that move instead fell to the drug’s manufacturers. They claimed standing and injury on the grounds that they would be financially harmed if the 2023 rules were vacated. The drugmakers also emphasized the “unprecedented” nature of the Fifth Circuit’s intervention to block mifepristone.
“Never before has a federal court purported to immediately enjoin a several years’ old drug approval; restrict a distribution system for that drug that manufacturers, providers, patients, and pharmacies have all been using for years; or reinstate conditions that FDA determined do not meet the mandatory statutory criteria,” Danco Laboratories told the justices in their stay application.
That brings us to Wednesday’s order. As a shadow-docket order, the high court is not required to explain its reasoning and it did not bother to do so here. Instead the court used its standard formula to keep the status quo intact while the Fifth Circuit considers the merits of the case. As a result, the public does not know why or how the justices reached its decision to keep mifepristone accessible for the time being.
Only two of the conservative justices wrote dissents from the court’s decision, however, so we can at least infer—within reason—why the majority of justices did not act. One of the dissents is from Justice Clarence Thomas, who argued in part that the court should have rejected the drugmakers’ appeal because they were engaged in what he described as a “criminal enterprise.”
“I write separately to note that, as Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions,” he wrote. “The Comstock Act bans using ‘the mails’ to ship any ‘drug…for producing abortion.’” Here, Thomas referred to a 1873 law that sought to ban the distribution of “obscene” materials and products through the postal system. The companies, Thomas continued, “cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Anti-abortion groups and activists have long urged Republican administrations to use the Comstock Act to target abortion providers and the pharmaceutical companies that make mifepristone, as my colleague Melissa Gira Grant has reported in recent years. Roe’s demise amplified those efforts; Project 2025 also championed it as a policy proposal for the second Trump administration. No such prosecutions have taken place thus far, however.
Trump declared on the campaign trail in 2024 that his administration would not seek to enforce the Comstock Act to target abortion drugs. “The federal government should have nothing to do with this issue,” he told CBS News at the time. That stance drew the ire of anti-abortion conservatives and fueled their mistrust of the FDA’s review of the 2023 regulations—which, in turn, led to the current lawsuit. While Trump happily took credit for the Dobbs ruling, he has reportedly been reluctant to go further on abortion restrictions, citing the potential electoral fallout.
Thomas’s stance did not draw the votes or support of any other members of the Supreme Court’s conservative bloc. This is not a definitive statement of the justices’ views. It is possible they agreed but decided to override the Fifth Circuit on other grounds. But it is an illustrative one. One potential explanation is that the court’s conservatives were willing to overturn Roe and give states the ability to ban abortion, but have little appetite in going further.
That would also explain the parallel dissent filed by Justice Samuel Alito on Thursday night. Alito, the author of Dobbs, expressed his umbrage at the court for allowing mifepristone’s distribution by mail to go forward. “The Court’s unreasoned order granting stays in this case is remarkable,” he wrote. “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization, which restored the right of each state to decide how to regulate abortions within its borders.”
A few things stand out here. First, it is rich to see Alito complain that the Supreme Court has issued an “unreasoned order” on the shadow docket in any context. Not only has he uncritically done just that in numerous cases over the past decade, but he has also been the court’s most outspoken defender of the shadow docket in public remarks in recent years. Most relevantly, he was among the justices who voted to allow Texas’s abortion-bounty law to take effect in 2021, more or less nullifying Roe in that state the year before he could swing the axe to finish it off everywhere.
The most important part, however, was when he described Dobbs as “restor[ing] the right of each state to decide how to regulate abortions within its borders.” This right, in Alito’s view, has been “thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana’s and seek to undermine their enforcement.” In other words, he claimed, the court’s ruling in Dobbs gave states a “right” to prevent abortion in their states beyond their ordinary post-Roe powers to do so.
“One might think that Louisiana could stop or impede this out-of-state interference in its law enforcement by bringing civil actions or criminal charges against the participants in this scheme,” Alito wrote, but that is apparently not the case. He complained that states like New York have enacted “shield laws” to protect out-of-state providers from Louisiana’s efforts to stop them, and that the Biden-era FDA had removed a “signifcant regulatory barrier from schemes to undermine Dobbs.”
It is hard to square the opinion that Alito thinks he wrote with the Dobbs opinion that was released four years ago. In Dobbs, he simply wrote that by overturning Roe, the court was freeing states to regulate abortion as they wished. “Abortion presents a profound moral question,” he wrote in 2022. “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
“In some states, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized,” Alito wrote in Dobbs. “Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
At no point did Alito’s opinion in Dobbs suggest that other states and the federal government have a positive obligation to help states ban abortion within their borders. Indeed, his conservative colleagues indicated otherwise in their concurring opinions. Justice Brett Kavanaugh explained that he thought the Constitution was “neutral on the issue of abortion,” and that the high court “also must be scrupulously neutral” on the matter.
Kavanaugh’s concurring opinion also foresaw the possibility that state laws on abortion might have implications beyond their borders. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion?” he asked. “In my view, the answer is no based on the constitutional right to interstate travel.” The Constitution requires states to extradite fugitive felons to the state where they allegedly committed a crime, but it does not obligate state governments to otherwise help other states enforce their own laws within their own borders.
It is possible, of course, that the other conservative justices eventually rule against the FDA on the merits if they get an opportunity at a later stage in litigation. But for now, it appears that Roberts, Gorsuch, and Barrett may be leaning more towards Kavanaugh’s “neutrality” framework for the court’s role in post-Dobbs abortion cases than what Alito imagined. If nothing else, the justices were apparently unpersuaded by Alito’s argument that the federal government must bend its own laws and regulations to help Louisiana prevent as many abortions as possible.
