The Supreme Court today, in a 7-2 decision in Danco Laboratories, LLC v. Louisiana, (Sup. Ct., May 14, 2026), granted a stay while appeals continue of the 5th Circuit's decision that had barred telehealth prescribing and mail order delivery of the abortion drug mifepristone. The majority granted the stay in a one-paragraph order.
Justice Thomas filed a dissenting opinion, saying in part:
... [I]t is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using “the mails” to ship any “drug . . . for producing abortion.” 18 U. S. C. §1461. A neighboring provision makes it a felony to use “any express company or other common carrier or interactive computer service” to ship “any drug . . . designed, adapted, or intended for producing abortion.” §1462(c)....
... Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.
Justice Alito also filed a dissenting opinion, saying in part:
... 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.
... [W]ithout any current indication that the FDA plans to resume enforcing the in-person-dispensing requirement, there is no reason to believe that the manufacturers could not continue their current distribution practices....
If the FDA were to execute an abrupt about-face and commence enforcement of the in-person-dispensing requirement, the manufacturers could promptly reapply for stays at that time. But even were that to happen, the manufacturers have not shown that they would suffer irreparable injury....
NBC reports on the decision.
