From Slate Magazine · Mary Ziegler · · 3m
Louisiana's impatient push to ban the abortion pill
Louisiana is asking courts to block telehealth mifepristone access, but the Supreme Court already said no. Here's why the state is trying anyway.
In brief
Louisiana is asking courts to block telehealth mifepristone access, but the Supreme Court already said no. Here's why the state is trying anyway. Louisiana is attempting to circumvent a Supreme Court order by asking a lower court to immediately ban telehealth abortion pills, betting that conservative judges will…
Telehealth abortion pills at stake
Louisiana wants to shut down telehealth access to mifepristone, the first pill in medication abortion. Telehealth accounts for roughly 30 percent of all abortions nationwide.
The Supreme Court already ruled
Last spring, the Supreme Court ordered that mifepristone access remain unchanged during litigation. Louisiana is now asking the Fifth Circuit to do exactly what the Supreme Court said it couldn't.
“A majority of the justices ruled that mifepristone access should remain unchanged during litigation in the case.”
Louisiana's standing problem
The Supreme Court previously rejected an anti-abortion group's lawsuit because they lacked standing to sue. Louisiana is now trying to prove it's different by claiming the FDA rules already harm the state's ability to enforce its abortion ban.
Judge signals Louisiana will eventually win
A federal judge concluded Louisiana has standing and will likely win on the merits, but said the FDA deserves a chance to impose new limits first. The Trump FDA is studying mifepristone safety, conveniently scheduled to finish after the midterm.
Louisiana won't wait for the study
Impatient with the timeline, Louisiana asked the Fifth Circuit to immediately pause telehealth access. The state dismissed the Supreme Court's earlier order as merely a shadow-docket ruling that doesn't bind lower courts.
Why the Supreme Court may have hesitated
The Supreme Court may have wanted to let the FDA complete its review before intervening, especially since blocking mifepristone before the midterm would make abortion a major election issue.
The Fifth Circuit panel leans left
Although the Fifth Circuit is the nation's most conservative appellate court, the panel assigned to this case is relatively left-leaning. Oral arguments suggested the judges were skeptical of Louisiana's standing argument.
Trump may act after the midterm
Trump has hesitated to restrict mifepristone before the election because abortion has hurt Republicans politically. After the midterm, the Trump administration could impose new restrictions without worrying about electoral consequences.
Trump's personal interests matter
Trump cares more about pleasing conservative Christian supporters and donors for his postpresidential future than about helping GOP candidates in 2028. This could motivate him to restrict mifepristone after the election.
Other cases could force action
Even if Trump moves slowly, courts could force the administration to act. A parallel case filed by Texas and Florida attorneys general seeks to take mifepristone off the market altogether.
Standing issues could resurface
The standing problems that derailed previous anti-abortion lawsuits could create problems for Louisiana at the Supreme Court too. But Louisiana is betting the court will eventually side with the state.
The long game favors restrictions
For Louisiana, blocking telehealth mifepristone access is just a matter of time. The question is whether it happens before or after the midterm election.
“As far as Louisiana is concerned, though, the end of telehealth access to mifepristone is just a matter of time.”
The key point
Louisiana is attempting to circumvent a Supreme Court order by asking a lower court to immediately ban telehealth abortion pills, betting that conservative judges will ignore the higher court's earlier decision to keep access unchanged during litigation.
