Supreme Court stays 5th Circuit’s fiat ban on mifepristone
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The Supreme Court has temporarily restored online and mail-order access to the abortion drug mifepristone after a federal appeals court curtailed access to the medication on Friday.
In a brief order Monday, Justice Samuel Alito put on hold a decision by the 5th Circuit Court of Appeals that limited how patients could obtain the pills.
Alito’s order is in effect through May 11, giving all nine justices time to consider requests from the drug’s manufacturers to keep the appeals court’s ruling on ice while the Supreme Court considers whether to take up the issue.
The Trump administration, which had asked lower courts to hold off on ruling until the Food and Drug Administration completes an internal review of the drug’s safety, has yet to react to the 5th Circuit decision.
Alito — who wrote the majority opinion in the case that overturned Roe v. Wade in 2022 — gave Louisiana until May 7 to respond to the emergency appeals from the two companies that make mifepristone, Danco and GenBioPro. He’s likely to refer the request for a longer-term stay to the full court for action.
The pharmaceutical companies argued that the Supreme Court must intervene in order to prevent “regulatory chaos,” saying the 5th Circuit’s decision was “deeply unsettling to drug sponsors, healthcare providers, patients, and the public—all of whom rely on FDA’s exercise of scientific judgment and orderly administration of the Nation’s complex system of drug regulation.”
Don’t read anything into Alito issuing the order — he presides over 5CA, and being the Court’s messiest diva he always has little ways of signaling his disdain for an order he has to issue when he’s effectively representing the full court:
One of the most amusingly petty things Justice Alito does is to put deadlines on administrative stays *only* when he is deeply *unsympathetic* to the applicants. He did it in the 2023 mife case and the 2024 SB4 immigration case; and he did it today. In all other cases, his stays are indefinite:
[image or embed]— Steve Vladeck (@stevevladeck.bsky.social) May 4, 2026 at 8:14 AM
To be clear, not just the 2023 mife and 2024 SB4 cases; Alito also regularly put deadlines on administrative stays on other applications from the Biden administration (and almost nothing else). Ex. 1: www.supremecourt.gov/orders/court… Ex. 2: www.supremecourt.gov/orders/court… Ex. 3:
[image or embed]— Steve Vladeck (@stevevladeck.bsky.social) May 4, 2026 at 8:21 AM
In related news, I am beginning to think that Dobbs was not about protecting the interests of federalism:
Dannenfelser’s assessment for supporters packed into a glitzy neoclassical auditorium in downtown Washington for the group’s spring gala Wednesday was dire: If Republicans don’t abandon Trump’s strategy of letting states decide abortion law, “then the movement as we know it is finished.”
“Send the issue back to the states…as represented in the United States Congress, or even better in the executive and judicial branches.”