Supreme Court Keeps Mifepristone Available by Mail as the FDA Declines to Defend Its Own Rule

The Supreme Court on May 14 extended its hold on a Fifth Circuit ruling that would have barred mailing mifepristone, allowing the drug to continue being distributed by mail and telehealth while litigation continues in the lower courts. The orders came in Danco Laboratories v. Louisiana and GenBioPro v. Louisiana. Justices Clarence Thomas and Samuel Alito noted dissents. Justice Alito had earlier extended an administrative stay through May 14 while the Court considered the applications.

The procedural posture is the notable part. Louisiana argued in its filings that the FDA itself was not defending the agency's decision to permit mail distribution, leaving the drug's manufacturers to carry the defense of a federal regulatory determination. When an agency declines to defend its own approved labeling, private parties must step in to preserve a nationwide rule, and the practical scope of federal drug regulation can shift without a formal rulemaking or a merits ruling.

The order is interim relief, not a decision on the merits. The underlying challenge to the FDA's telehealth and mail-dispensing rules remains pending in the lower courts.