This dispute is on a fast track toward the Supreme Court.
Louisiana has endured a whirlwind 48 hours. On Wednesday, the Supreme Court issued its ruling in Callais. The next day, the Governor declared a halt to the upcoming primary elections to give lawmakers room to redraw district boundaries. There is also ongoing litigation before the Supreme Court concerning how the Callais judgment was issued. Earlier today, the Governor was sued to prevent the cancellation of the election.
A few moments ago, a panel of the Fifth Circuit issued a stay in Louisiana’s challenge to the 2023 telemedicine authorization for mifepristone. So, you thought the dispute ended after Alliance for Hippocratic Medicine? You have not been following the Fifth Circuit closely enough.
For the moment, I will reproduce the opening portion of Judge Kyle Duncan’s panel opinion.
In the Dobbs v. Jackson Women’s Health Organization case, 597 U.S. 215 (2022), the Supreme Court repositioned the regulation of abortion back to the states. In response, the Biden Administration directed federal agencies to “expand access to . . . medication abortion.” Exec. Order No. 14076, 87 Fed. Reg. 42053 (July 8, 2022). The following year, the Food and Drug Administration (FDA) formally revised its safety guidelines for the abortion drug mifepristone. Under the revised rules, the drug could be prescribed online and mailed to patients, removing the necessity of an in-person doctor visit. In 2025, Louisiana challenged this regulation in federal court under the Administrative Procedure Act (APA). It argued that the FDA’s justifications for remote dispensing of mifepristone rested on flawed or non-existent data. It also documented how the new rule had led to numerous unlawful abortions in Louisiana and caused the state to incur substantial Medicaid expenses for women harmed by mifepristone. Louisiana moved for a stay of the rule while the litigation unfolded. In response, the FDA conceded that it had not adequately studied the safety of remote prescribing for mifepristone. Yet the agency resisted a pause on the regulation, arguing that it was in the midst of a comprehensive review of mifepristone protocols. The agency, however, could not specify when that review would conclude and admitted it was still collecting data. The district court found that Louisiana was likely to prevail on its challenge and would suffer irreparable harm as a result, but it nonetheless declined to issue a stay, weighing the equities and the public interest. Louisiana appealed to our court and sought a stay pending appeal under 5 U.S.C. § 705.
We grant the stay.
This case is headed for the Supreme Court very soon.
To be clear, this ruling would not remove mifepristone from the market. Rather, it would require an in-person evaluation before a prescription for the abortion drug could be issued. Since the Dobbs decision, the national number of abortions has likely risen, in large part due to the telemedicine framework. Physicians based in blue states have been sending these pills to Louisiana, Texas, and other red states, shielded by state immunity laws. But imposing an in-person prerequisite to prescribing would bar those doctors from dispensing across state lines.
The Trump Administration probably wants to avoid this complication. The government has raised a host of standing and other procedural objections but has not defended the Biden administration’s decision on the merits. We will see how SG Sauer argues the government’s position before the Supreme Court.
