Justices Thomas, Alito accuse Supreme Court of undermining ‘Dobbs’ in abortion-pill order

In dissents issued May 14, Justices Clarence Thomas and Samuel Alito criticized the Supreme Court’s unsigned order allowing telemedicine prescriptions and mail delivery of the abortion pill mifepristone to continue while litigation proceeds.

Both justices accused their colleagues of undermining the court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization by allowing abortion pills to continue crossing into states with protections of the unborn.

As Zeale News previously reported, the court’s May 14 order stayed a 5th Circuit ruling that would have restored nationwide in-person dispensing requirements for mifepristone. The legal dispute stems from a Louisiana lawsuit arguing that the Food and Drug Administration’s (FDA) 2023 telehealth and mail-order policies violate the state’s pro-life laws by allowing the abortion drug to be shipped into the state. After the 5th Circuit ruling, mifepristone manufacturers Danco Laboratories and GenBio Pro asked the Supreme Court to intervene.

Thomas wrote in a brief dissent that he would have denied the manufacturers’ stay applications, arguing they did not meet the legal burden for relief. He also pointed to the Comstock Act, an 1873 federal law that prohibits mailing drugs “for producing abortion.” Because shipping mifepristone for abortions is illegal under that law, Thomas argued, the manufacturers could not claim distribution restrictions cause irreparable harm.

“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” he wrote. “They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.” 

Thomas also cited filings claiming that mifepristone shipped into Louisiana causes nearly 1,000 abortions every month.

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