WASHINGTON — Louisiana’s state attorneys on Thursday urged the Supreme Court to stand aside for now and to uphold an appeals court ruling that would stop the mailing of abortion pills nationwide.
They blamed former President Biden for undermining the state’s strict bans on abortion and the Trump administration for slow-walking a study on the federal regulations that permit sending the pills through the mail.
The justices are likely to act soon on emergency appeals filed by two makers of mifepristone. They argued the pills have been shown to be safe and effective for ending an early pregnancy.
But last week, the conservative 5th Circuit Court of Appeals in New Orleans ruled for Louisiana and revived an earlier regulation that would require women to obtain the pills in person from a doctor.
The three-judge panel also took the unusual step of putting its order into effect immediately. On Monday, Justice Samuel A. Alito Jr., who oversees the 5th Circuit, issued an administrative stay that will keep the case on hold through Monday.
The justices have to decide whether Louisiana had standing to sue over the federal drug regulations, and if so, whether judges have the authority to overrule the Food and Drug Administration.
Two years ago, the Supreme Court by a 9-0 vote dismissed a similar challenge to the abortion pills that came from the 5th Circuit. And Chief Justice John G. Roberts has said in the past that judges should usually defer to the federal agency that is responsible for regulating drugs.
In response to antiabortion advocates, Health and Human Services Secretary Robert F. Kennedy Jr. agreed to have the FDA review the safety record of mifepristone.
It was approved in 2000 as safe and effective for ending early pregnancies. And in the last decade, the agency had relaxed earlier restrictions, including a requirement that pregnant women visit a doctor’s office to obtain the pills.
But the FDA said last month that its review is far from complete.
In October, Louisiana Atty. Gen. Liz Murrill decided to bypass the FDA review and went to federal court seeking a ruling that would prevent the pills being sent by mail.
A federal judge refused to decide on the issue while the FDA was undertaking its review. But the 5th Circuit chose to act now. The Louisiana state attorney put the focus on the Biden administration.
When the Supreme Court was considering the Dobbs case, which overruled Roe vs. Wade and the right to abortion, “the Biden Administration was preparing a plan that predictably would undermine that decision,” she wrote in Thursday’s response.
“Although Louisiana law generally prohibits abortion and the dispensing of mifepristone to pregnant women, out-of-state prescribers — freed from the in-person dispensing requirement — are causing approximately 1,000 illegal abortions in Louisiana each month by mailing FDA-approved mifepristone into the state,” she said.
The Trump administration has yet to tell the court of its views on this case.