On Friday evening, the far-right United States Court of Appeals for the 5th Circuit attempted to cut off access to the abortion drug mifepristone. If you’re experiencing déjà vu, you should be, because in 2023, the far-right United States Court of Appeals for the 5th Circuit also attempted to cut off access to the abortion drug mifepristone.

Almost immediately after the 5th Circuit issued its second decision, two pharmaceutical companies that make the drug asked the Supreme Court to intervene. The two largely identical cases now before the justices are known as Danco Laboratories v. Louisiana and GenBioPro v. Louisiana. 

The 5th Circuit’s reasoning the first time around was so weak that the Supreme Court unanimously rejected it, holding that federal courts did not even have jurisdiction to hear the case in the first place. This time around, most of the legal issues are identical to the ones that were before the Court in FDA v. Alliance for Hippocratic Medicine (2024), the first mifepristone case. The Court should resolve Danco the same way it resolved the Alliance case, in a unanimous opinion holding that no federal court has jurisdiction to hear this challenge.

Notably, Justice Samuel Alito, who typically has the first crack at emergency appeals arising out of the 5th Circuit, issued a temporary order blocking the 5th Circuit’s decision until May 11. That’s a very hopeful sign for abortion providers.

That said, abortion providers and their patients have some reason to fear that this Court may not follow its decision in Alliance. While the Court did block the previous effort to ban mifepristone, Alliance is the only significant victory that abortion rights advocates have won in the Supreme Court since the Republican Party gained a supermajority on that Court. 

The Court’s Republican majority frequently hands down anti-abortion decisions that are inconsistent with their previous precedents, including very recently decided cases. In Medina v. Planned Parenthood (2025), for example, the Republican justices appeared to overrule a two-year-old decision in order to cut off Medicaid funding to abortion providers. 

Similarly, in Whole Woman’s Health v. Jackson (2021), five of the Court’s Republicans handed down an opinion that, if taken seriously, would allow any state to abolish any constitutional right by sending bounty hunters after anyone who exercises that right.

So, while the drug companies’ arguments in Danco are about as strong as a legal argument can possibly be, it remains to be seen whether this Court will follow its own precedent in Alliance.

The 5th Circuit’s decision in Danco threatens to eliminate access to mifepristone

Before we get into the legal details of the Danco case, it’s important to understand why the 5th Circuit’s decision in that case threatens all patients’ ability to obtain mifepristone, in every state, even though the 5th Circuit claims that its decision is more modest.

Prior to 2021, patients who wished to terminate their pregnancies via medication had to make an in-person visit to their doctor’s office and pick up the drug in person. But in December 2021, the Food and Drug Administration relaxed those rules, permitting patients to consult with a doctor via telemedicine and then obtain the drug through the mail.

Technically, the 5th Circuit’s decision in Danco only blocks these five-year-old changes to the FDA’s mifepristone protocol. As a practical matter, however, any court-ordered change to that protocol risks suspending patients’ access to mifepristone indefinitely.

The reason why is that the FDA only allows mifepristone to be dispensed under the protocol that the FDA itself laid out, which in this case is known as a “risk evaluation and mitigation strategy” or “REMS.” When the 5th Circuit struck down the REMS that permits mifepristone to be distributed by mail, on Friday, it didn’t replace it with anything. So it’s far from clear that mifepristone may be prescribed at all until the FDA replaces the old REMS with a new one.

That process typically takes months. As Danco Laboratories explained the last time mifepristone was before the Court, it must “revise product labels, packaging, and promotional materials; recertify providers; and amend its supplier-and-distributor contracts and policies” to comply with whatever the new REMS requires. And that assumes that the Trump administration, which currently controls the FDA, is even willing to issue a new REMS.

In fairness, it is uncertain what, exactly, is supposed to happen if the 5th Circuit’s decision remains in effect. As Danco explains in its most recent brief to the justices, “there has never been a court-enjoined REMS,” so drug companies and pharmacists have no idea what their legal obligations are right now. They do not know which actions could lead to “civil and criminal penalties,” and thus are likely to proceed with extreme caution, because they cannot know whether distributing mifepristone under any protocol will expose them to “potentially huge liability” or worse.

Unless the Supreme Court reverses the 5th Circuit, in other words, the lower court’s decision could have the same effect as an explicit ban on mifepristone.

The 5th Circuit’s decision is egregiously wrong

There are probably at least a half-dozen legal errors in the 5th Circuit’s brief Danco opinion. The most glaring errors involve a legal doctrine known as “standing” which was also front-and-center in the Alliance case.

No plaintiff may bring a federal case challenging a law or policy unless they’ve been injured in some way by that law or policy. 

In Alliance, the plaintiffs were anti-abortion doctors who, as the Court explained, “do not prescribe or use mifepristone.” Nevertheless, these doctors claimed that they were injured by the fact that mifepristone is legal because a patient might take mifepristone. That patient might then experience a complication that requires a doctor to complete the patient’s abortion. Then, one of the plaintiff doctors might be working in an emergency room when that patient arrives. And that doctor might be forced to perform this abortion, presumably because no other doctor was available to do so.

The Supreme Court rejected this chain of mights as “too speculative or too attenuated” to permit those plaintiffs to sue.

The plaintiff in Danco is the state of Louisiana. It claims that it has standing to sue because, if a Medicaid patient takes mifepristone, experiences a complication, and goes to the emergency room for treatment, then the state may have to pay for that treatment through its Medicaid program. But this claim is even more attenuated than the plaintiffs’ claim in Alliance. Under the 5th Circuit’s theory, a patient might take the drug, might have a complication, might seek care at a Louisiana emergency room, and might then have that care paid for by Medicaid. That’s still far too many mights.

(Louisiana does claim that it has previously paid for two Medicaid patients who sought care after taking mifepristone. But, even if this is true, it is irrelevant because, in City of Los Angeles v. Lyons (1983), the Supreme Court held that anyone seeking an injunction must show they are likely to be injured in the future by whichever policy they are challenging.)

Alternatively, the 5th Circuit also claimed that Louisiana has standing because its law is different than federal law: Louisiana bans mifepristone, while the FDA permits it and even allows the drug to be mailed. But the Supreme Court rejected the argument that a state may sue the federal government because federal law is different from state law in Haaland v. Brackeen (2023), and for good reason. “Were it otherwise,” the Court explained, “a State would always have standing to bring constitutional challenges.”

There are other likely errors in the 5th Circuit’s Danco decision. Among other things, Louisiana may have forfeited its right to sue because it didn’t first petition the FDA to change its policy. And the 5th Circuit faulted FDA for applying the same rules governing how it monitors drugs to make sure they aren’t injuring patients that it applies to most other drugs. But the 5th Circuit’s refusal to follow Alliance’s approach to standing is the most egregious error, and the one that is most likely to trouble the justices, because the Supreme Court ordinarily expects lower courts to follow its recent decisions.

Why hasn’t a Republican Supreme Court gone all in on banning mifepristone?

One mystery looming over both the Alliance and the Danco case is why this Court, which is normally hostile towards abortion, has thus far rejected the 5th Circuit’s attempts to ban mifepristone.

One possible explanation is that the Republican justices are simply following their party’s lead. In his second term, President Donald Trump repeatedly disappointed anti-abortion activists. Anti-abortion groups, for example, lobbied Trump to name Roger Severino, a prominent social conservative who served in Trump’s first administration, as Deputy Secretary of Health and Human Services. But Trump’s transition team rejected this request, reportedly “over concerns that [Severino’s] strident anti-abortion views would prove too controversial.”

Similarly, Trump has not ordered the FDA to ban mifepristone. And his Justice Department has not brought any prosecutions under the Comstock Act, a defunct-but-never-repealed 1873 law that bans a simply astonishing array of things related to sex, abortion, or erotica.

The Republican Party, in other words, appears concerned that moving too aggressively on abortion could backfire on them — politically or otherwise — and the Republican justices may have adjusted their behavior accordingly.

Another possibility is that some of the Republican justices may have a principled commitment to the view that states should get to decide their own abortion policy. In Medina, the Court permitted South Carolina to defund Planned Parenthood, and in Jackson, the Court upheld a Texas state law that allowed bounty hunters to collect money from abortion providers. Both cases, in other words, permitted red states to do what they wanted to do.

The mifepristone question, by contrast, impacts all states — including blue states that support abortion rights. If the 5th Circuit’s approach to mifepristone were embraced by the Supreme Court, the drug would be restricted — or even completely unavailable — in states where abortion is legal. So it is possible that the justices are upholding abortion restrictions enacted by red states, while treading more cautiously around rulings that could limit abortion in states where it is legal.

 Whatever its reasoning, the Court has thus far protected mifepristone access even as it has otherwise been consistently anti-abortion. But the Danco case is still in its early stages at the Supreme Court, so it remains to be seen whether Alito’s temporary order actually transforms into something more permanent. 

Source: Vox.