The state of Louisiana on Thursday afternoon urged the Supreme Court in Danco Laboratories v. Louisiana and GenBioPro v. Louisianato leave in place an order by the U.S. Court of Appeals for the 5th Circuit that prohibits the mailing of mifepristone, one of two drugs used in medication abortions, which are in turn the most common form of abortion in the United States. Justice Samuel Alito, who fields emergency requests from the 5th Circuit, on Monday temporarily paused the lower court’s order to give the Supreme Court time to consider a request from two manufacturers of mifepristone to reinstate access to that drug. Alito’s order means that mifepristone will remain widely available nationwide at least until Monday, May 11, the date on which the temporary pause expires.
In a 58-page filing, Louisiana told the justices that the Biden administration’s decision to make mifepristone available by mail was part of an effort to “undermine” the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion. It wrote that mifepristone coming from out of state by mail is “causing approximately 1,000 illegal abortions in Louisiana each month.” Moreover, it added, the manufacturers’ “real fear is that, under the Fifth Circuit’s decision, they might not be able to sell as many abortion drugs as they would like.”
But if the court does opt to pause the 5th Circuit’s order, the state concluded, it would agree that the court should take up the case now and hear “oral argument before the summer recess.”
Thursday’s filing was the latest chapter in a dispute over access to mifepristone that dates back to the Biden administration. In 2024, the Supreme Court ruled that doctors and medical groups opposed to abortion did not have a legal right to sue, known as standing, to challenge the Food and Drug Administration’s expansion of access to mifepristone.
That case, FDA v. Alliance for Hippocratic Medicine, was brought by several doctors who are opposed to abortion on religious or moral grounds, as well as medical groups whose members are opposed to abortion. U.S. District Judge Matthew Kacsmaryk rescinded both the FDA’s initial approval of the drug in 2000 and its 2016 and 2021 expansions of access to it, which included allowing the drug to be used through the 10th week of pregnancy, allowing health-care providers who are not physicians to prescribe the drug, and permitting it to be prescribed without an in-person visit.
On appeal, the 5th Circuit upheld the part of Kacsmaryk’s ruling that rolled back the agency’s 2016 and 2021 changes that had expanded access to mifepristone.
In June 2024, the Supreme Court reversed the lower court’s ruling and sent the case back to the lower courts. In his opinion for the court, Justice Brett Kavanaugh wrote that the challengers had “sincere legal, moral, ideological, and policy objections” to elective abortion “by others” and to the FDA’s 2016 and 2021 changes to the conditions on the use of the drug. But those objections, he said, did not provide a right to challenge the changes, because the doctors and medical groups had not shown that they would be harmed by the FDA’s mifepristone policies.
Louisiana filed its own lawsuit last fall, asking a federal judge to reinstate the in-person dispensing requirement. After the district court put the case on hold to give the FDA time to complete its own review of mifepristone’s safety, Louisiana went to the 5th Circuit, asking that court to re-impose the requirement while litigation continues. The court of appeals ruled that Louisiana has a right to sue because, by allowing mifepristone to be prescribed by telehealth and sent by mail, the “FDA ‘opened the door for mifepristone to be remotely prescribed to Louisiana women,’” even though Louisiana generally bars abortion.
The drug manufacturers, Danco and GenBioPro, came to the Supreme Court on Saturday, asking the justices to intervene. Danco told the court that the 5th Circuit should have applied the same analysis that the Supreme Court used in 2024 to conclude that the doctors and medical groups did not have standing. And in particular, it said, “Louisiana’s theory—that it can base standing on having to pay those doctors if someone who received FDA-approved mifepristone through the mail seeks follow-up care to treat a complication—is a more attenuated version of the” theories that the court specifically rejected two years ago. And Louisiana’s claim that it is injured because of the disconnect between federal law and its own state law is not the kind of injury that courts can review, Danco said.
GenBioPro contended that if the 5th Circuit’s order is put on hold, it merely “will allow the years-long status quo to remain in force while the Food and Drug Administration (‘FDA’) completes its ongoing review” of mifepristone’s safety. Moreover, it suggested, the lower court’s “‘unusually broad and novel view of standing’” “would allow States to challenge virtually any agency action whenever they allege downstream costs or interference with state policy.”
In its brief on Thursday, Louisiana countered that it has made a clear showing that it has a legal right to sue. First, it said, its sovereignty has been injured, both by the violation of its laws and by its inability to enforce those laws. Second, Louisiana said, it has suffered precisely the kind of “pocketbook” injury that provides standing to sue. It has had to spend, the state told the justices, more than $17,000 just to investigate three cases involving mifepristone sent through the mail from out of state. And it has also had to pay “over $92,000 in Medicaid dollars … for emergency room care and hospitalization resulting from just two mifepristone-induced abortions in 2025.”
It is equally clear, Louisiana argued, that reinstating the in-person dispensing requirement would provide relief for the state’s injuries – another key factor in determining whether a plaintiff has a right to sue. As evidence, Louisiana pointed to statements by the drug companies’ allies warning about the effects of allowing the 5th Circuit’s order to remain in place. For example, it observed, the Guttmacher Institute contends that requiring mifepristone to be prescribed and dispensed in person “would severely restrict access to mifepristone in every state.”
Finally, Louisiana asserted that it is likely to prevail on the merits of its claims – an important factor in determining whether preliminary relief is appropriate. The FDA itself, Louisiana stressed, is not defending the decision to allow mifepristone to be sent through the mail. And both lower courts, it said, “also rightly concluded that Louisiana is likely to succeed in its” argument that the FDA violated the federal law governing administrative agencies when it reached that decision.
The drug companies will have an opportunity to reply to Louisiana’s brief. The court is likely to act on their request before Monday, May 11, at 5 p.m. EDT, when Alito’s temporary stay is scheduled to expire.