Justice Clarence Thomas Confirms Comstock Act Bans Mail-Order Abortions

Yesterday, the U.S. Supreme Court voted 7-2 to extend an administrative block on a preliminary lower court ruling and keep mail-order access to the chemical abortion drug Mifepristone available while litigation continues. Thursday’s extension of the stay allows the drug to be sent through the mail while the Fifth Circuit appeal proceeds toward a permanent ruling.

On May 8, a three-judge panel from the U.S. Fifth Circuit Court of Appeals preliminarily ruled that the U.S. Food and Drug Administration (FDA) must reinstate the in-person requirement for dispensing Mifepristone. The Fifth Circuit’s decision temporarily blocked the 2023 FDA rule change that allowed Mifepristone to be distributed through the mail without an in-person medical visit. The three-judge panel ruled unanimously that the state of Louisiana was likely to prevail on the merits in its challenge to the pill’s 2023 deregulation adopted by Biden’s administration, and the Fifth Circuit will now proceed toward a permanent decision by fully examining those merits.

Justice Samuel Alito, who handles emergency requests from the Fifth Circuit, issued a temporary administrative stay within days of the Fifth Circuit ruling to allow all the Supreme Court Justices to fully consider an emergency request from Mifepristone’s manufacturers to stay the ruling.

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Both Justice Clarence Thomas and Justice Samuel Alito dissented from the ruling to extend the stay.

Justice Thomas stated that the Comstock Act bans using the mail to ship any “drug…for producing abortion.”

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

Justice Alito’s dissent notes that the 2022 Dobbs decision that overturned Roe v. Wade has prompted some states like Louisiana to make abortion illegal except in narrow circumstances. Yet, Louisiana’s abortion laws are being circumvented by “medical providers, private organizations, and states that abhor” these laws and “seek to undermine their enforcement,” and now “more abortions now occur each month in Louisiana than they did before Dobbs,” reads his dissent.

“The Court’s unreasoned order granting stays in this case is remarkable,” wrote Justice Alito. “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization, which restored the right of each State to decide how to regulate abortions within its borders.”

Justice Alito stated that Mifepristone’s manufacturers, which include Danco Laboratories and GenBioPro, “are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana.” Even if the loss of mail-order access reduced profits in pro-abortion states, the companies have not established those “lost profits” would “constitute irreparable injury,” he concluded.

Louisiana challenged the mail-order regulation under the Administrative Procedure Act (APA), arguing that the FDA’s justifications for remotely dispensing Mifepristone were based on flawed or nonexistent data. The lawsuit, filed in October 2025, argues that the FDA acted unlawfully under the APA by loosening Mifepristone’s safeguards without adequate scientific justification. Louisiana sought a stay of the regulation while the litigation proceeded. In response, the FDA conceded it had failed to adequately study whether remotely prescribing the abortion drug is safe. Yet the FDA resisted changing the regulation as it argued it is reviewing the drug’s protocols.

An April 2025 study from the Ethics and Public Policy Center found that nearly 11 percent of women who take Mifepristone experience serious adverse health events, including “sepsis, infection, hemorrhage, need for blood transfusion, hospitalization, emergency room visits related to the abortion, need for a surgical abortion due to incomplete abortion, and other abortion-specific complications.”

Liberty Counsel Founder and Chairman Mat Staver said, “This U.S. Supreme Court ruling is deeply disappointing because it keeps dangerous chemical abortion drugs available. The Fifth Circuit Court of Appeals rightly concluded that the FDA’s mail order rule was unlawful and undermines state abortion laws. The FDA’s deregulatory actions have failed the American public by continuing to allow abortion drugs to destroy innocent children and harm women. The FDA should no longer be allowed to violate federal law and circumvent state abortion laws by facilitating abortion pill trafficking nationwide through the mail. Chemical abortions are never safe and harm women and kill children.”