Danco Laboratories, one of the makers of the abortion pill mifepristone, asked the Supreme Court on Saturday to block a lower court ruling that imposed a nationwide requirement for the medication to be dispensed in person.
In its filing, the drugmaker also asked the high court to grant an immediate pause of the lower court’s ruling while the Supreme Court considers the appeal.
“Danco has been free to rely on the procedures set by FDA to distribute its product. The Fifth Circuit’s decision immediately ends that. A stay should issue to prevent the disruption and confusion that will result if the decision below were to remain operative,” lawyers for the company wrote in their filing.
The 5th Circuit U.S. Court of Appeals on Friday night granted the state of Louisiana’s request to reinstate an old requirement for abortion pills to be dispensed in person. That ruling was a win for anti-abortion activists because it bans the distribution of abortion pills via telehealth or mail.
Distributing mifepristone by mail has been a key way for women who live in states with abortion bans to access abortion care since the Supreme Court overturned Roe v. Wade in 2022.
In a statement, Planned Parenthood Action Fund President and CEO Alexis McGill Johnson expressed support for Danco’s appeal.
“In yesterday’s Fifth Circuit ruling, activist judges once again upended countless lives by making it harder for patients to get the care they need, when and where they need it,” she said. “The fight is on, and Planned Parenthood will continue to make clear that mifepristone should be accessible, because it’s safe and effective, full stop.”
Two years ago, the Supreme Court rejected a challenge to mifepristone, allowing the pill to remain widely available nationwide. In that case, the court decided that a group of doctors who challenged access to mifepristone didn't have standing to sue.
The lower court case originated after the Food and Drug Administration instituted a policy in 2023 that permanently installed a Covid-era rule allowing mifepristone to be dispensed via telehealth and by mail. Louisiana last year challenged that guidance.
Medication abortions account for more than half of abortions in the U.S.
In its filing, Danco argued that the lower court on Friday went too far by immediately limiting the sale of mifepristone to in person distribution and by doing so nationwide at the request of the state of Louisiana.
“Far from seeking an ordinary stay of a new agency action that has not yet gone into effect, the court immediately — upon the issuance of its order — stayed conditions on the distribution of mifepristone that have been in effect for over five years. This is unprecedented,” the filing says.
“At a minimum, the stay factors show that the public interest and equities weigh against allowing the Fifth Circuit to change the availability of a drug nationwide at the request of a single state,” the filing added later.
Danco also cited the “irreparable” harm to its economic interest from a nationwide ban on telehealth and mail distribution of the only product it sells.
“Mifeprex is Danco’s only product. Without a valid legal framework for distributing that product, Danco will lose its only source of revenue and may be unable to continue operating. That harm, too, is irreparable,” lawyers for the company wrote.
