Republicans Aren't Done With Mifepristone

Here's what happens next

Last night, the Supreme Court kicked telemedicine abortion back down to the Fifth Circuit. That means access to mifepristone by mail remains the same—a clear short-term win that gives advocates and providers some much-needed breathing room.

But in terms of the broader politics and long-term access, the decision was a mixed bag: by returning the case to a lower court, SCOTUS bought precious time for Republicans, who aren’t eager to deal with one of their most unpopular issues before the midterms. Dissents from Justices Samuel Alito and Clarence Thomas also laid out a legal roadmap for conservatives going forward—with Alito arguing that telemedicine abortion undermines the Court’s decision in Dobbs, and Thomas pointing to the Comstock Act.

Like we said last night, this is a reprieve—not a win. After all, the end of Roe caused a fundamental conflict between banned and pro-choice states—one that can’t be punted forever.

In the meantime, the anti-abortion movement—as angry as they are—is getting what they want: chaos, confusion, and American women believing their ability to access abortion pills is entirely dependent on whatever court order is released that day.

So let’s clear some things up and talk about what happens next.

How did we get here?

On May 1, a federal court temporarily blocked the FDA rule that allows mifepristone to be prescribed without an in-person visit. The conservative Fifth Circuit Court of Appeal ruled in favor of a suit brought by Louisiana Attorney General Liz Murrill, who argued that telehealth access to mifepristone is dangerous, that it enables abusers to ‘coerce’ their victims into abortion, and that it harms her Republican state by allowing women to sidestep its ban.

The court agreed that the FDA rules “undermine” Louisiana’s anti-abortion law, setting off a domino effect of fear and confusion.

What happened after the Fifth Circuit ruling?

Almost immediately after the federal court decision came down, media headlines declared that abortion pills by mail were now illegal—even though that wasn’t entirely true. The Fifth Circuit only changed FDA regulatory guidelines, not state or federal law.

The ruling didn’t mean that women would now be arrested or prosecuted for ordering abortion pills by mail. There was also debate among providers about what the ruling meant for them, because the FDA’s enforcement authority is typically directed toward manufacturers and distributors—not providers themselves. That’s why some continued to ship mifepristone per usual, while others switched to miso-only.

All of which is to say, it’s more complicated than the headlines let on. Consider revisiting Abortion, Every Day’s explainer for more clarity:

The Biggest Attack on Abortion Since the End of Roe

Soon after the decision came down, Democratic attorneys general and mifepristone manufacturers asked the Supreme Court to intervene. SCOTUS responded by pausing the Fifth Circuit ruling, extending that pause, and then—last night—issuing an order.

In addition to the flurry of legal decisions, there’s been lots of related political maneuvering happening in the background these last few weeks; click here for a run-down.

What are the stakes?

The Court’s decision—and what comes next—has vast implications for abortion rights in every state. Abortion-pills-by-mail—and providers’ ability to ship mifepristone without fear of state reprisal—is propping up access nationwide.

Nearly two-thirds of American abortions are provided using abortion pills, and almost 30% of all abortions are obtained using telehealth. The availability of abortion medication across state lines is one of the primary reasons the national abortion rate has remained steady. And when someone has an abortion in a banned state, it’s almost always a telemedicine abortion.

That’s precisely why Louisiana filed this lawsuit in the first place—not because there are any real ‘safety concerns’ about mifepristone. They’re mad that women are breaking their rules.

Republicans want every single one of us trapped under post-Dobbs bans. That’s why they’re not just targeting abortion pills, but the shield laws that protect the providers who ship them. Their (very explicit) goal is to extradite healthcare providers from pro-choice states and punish them in states where they could get life in prison.

Where is the Trump administration in all this?

Eerily quiet. The Trump administration—understanding how unpopular abortion restrictions are with voters—has mostly steered clear of any big showy moves lately. In fact, the administration even sought a temporary pause on Louisiana’s suit in January, saying the FDA needed time to complete their sham ‘safety study’ of mifepristone.

Anti-abortion activists were not pleased, especially because of reports that former FDA commissioner Marty Makary was slow-walking the bogus study until the midterms. Basically, the administration was using the promise of this study as a way to mollify anti-abortion groups without actually doing anything.

That said, the administration has been keeping its options open: when Trump’s DOJ asked for that pause in the case, for example, they did so on standing—not the merits. In other words, they didn’t dispute any of Louisiana’s false claims about mifepristone; they simply asked the court to delay the case on technical grounds.

As the ACLU Reproductive Freedom Project’s Julia Kaye said at the time, “the Trump administration isn’t defending medication abortion—it’s just defending its own authority to restrict access to mifepristone if, when, and how it sees fit.”

That aligns with what they’re doing now, too. Since the Fifth Circuit ruling, the FDA and Trump administration hasn’t said much of anything; some advocates tell AED the assumption is that the White House is trying to have their cake and eat it too. They don’t want to come out publicly against abortion pills and risk voters’ ire, but want the ability to ban abortion pill access at some point. The real trick is messaging to the anti-abortion movement that they still plan on the latter.

It’s like I pointed out last night: there’s a reason the FDA tweeted about the so-called safety study soon after the order from SCOTUS came down. By promising to “press forward” and “provide greater transparency,” the administration is asking the anti-abortion movement to hold tight.

It’s also not a coincidence that the new acting commissioner of the FDA is doing the rounds with anti-abortion activists: Kyle Diamantas promised Lila Rose of Live Action and Kristan Hawkins from Students for Life that “reviewing the abortion pill is a top priority.” He’s been dispatched to smooth things over, until the administration is ready make a more public move.

What do we do now?

We can’t just sit back and wait for more Trump-appointed judges to attack mifepristone. Telehealth is headed back to the courts, where anti-abortion legal groups and attorneys general will hone their arguments for the next time they go to SCOTUS. They’ve played the long game before, and now is no different. While they’re preparing, so should we.

Order advance provision abortion medication: You all know I’m an advance provision evangelist! Everyone should have abortion pills in their medicine cabinet just in case you—or someone you know—needs it. Especially given that the legal confusion of the past few weeks is sure to repeat itself.

Go to Plan C Pills, I Need An A, or Aid Access to buy pills to have on hand. Abortion, Every Day also has a robust resources page where you can find information on how to get abortion medication, along with legal and medical help.

Keep an eye on the midterms: I’m reminded every single day doing this work why elections matter so much. Look at the courts, ffs! If you have the ability to do some door-knocking or phone-banking ahead of the midterms, now is the time.

And attacks on abortion pills aren’t just happening at the national level. In state after state, Republicans are passing laws to increase penalties associated with having or dispensing abortion pills—in some cases classifying them as controlled substances, or legislating them under ‘drug trafficking’.

Every election matters—national, state, and local. Keep an eye out for more midterms coverage from AED; we’re working on an election guide of sorts that we hope will be useful.

Spread the word about the safety of abortion pills: The anti-abortion movement has been unfortunately successful at pushing out misinformation about abortion medication. (This KFF tracking poll haunts my nightmares.) That’s in large part because they’ve been extraordinarily disciplined about their messaging: whenever an anti-abortion group or activist gives an interview to the media, they’re talking about ‘trafficking’, ‘coercion’, and the supposed danger that mifepristone poses to women.

We need to be just as relentless with the truth.

Support local providers & funds: As you know, the folks making sure that patients get the medication they need are often working on the local level. They’re your friendly neighborhood abortion fund or clinic, and chances are they’re stretched way thin. Donate, volunteer, or reach out to see what help they need most.

Keep independent feminist media alive: Okay, this one is slightly self-serving, but I know you’ll understand. AED is working incredibly hard every day to keep you activated and informed. So many of you already support the newsletter with a paid subscription (thank you!!), but most readers don’t. That’s okay! I don’t support every newsletter I read, either. But if you can swing it, every paying member here really does make a huge difference. You can even sign up now at a discount.

I’ve said it before and I’ll say it again: Republicans want us to feel confused, scared, and alone. Our job is to make sure that doesn’t happen. Abortion pills aren’t going anywhere—not while we’re here taking care of each other.