On Thursday evening, May 14, 2026, approximately 30 minutes after an administrative stay by Justice Alito expired, the Supreme Court halted a Fifth Circuit order that would have forced individuals nationwide seeking mifepristone as a medication abortion treatment to have an in-person appointment before the medication could be dispensed.

The Court’s opinion, over two dissents, stayed the Fifth Circuit’s order for the pendency of the appeal and for as long as it takes the Supreme Court to handle any potential petition for certiorari that arises from that appeal. The Fifth Circuit’s opinion would have prevented the Food and Drug Administration (FDA) from enforcing a 2023 Risk Evaluation and Mitigation Strategy (REMS) that allowed patients to receive the drug through the mail without an in-person consultation. For more information about the Fifth Circuit opinion, see our earlier blog post.

The impact of the Supreme Court’s order is to reinstate the 2023 REMS until the end of the case. The Court ordered that its stay of the Fifth Circuit opinion will continue “pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.” That means the 2023 REMS will remain in effect until the case is fully decided, either by a final judgment of the Supreme Court or by the final judgment of the Fifth Circuit if review is not sought or is denied in the Supreme Court.

Dissenting Opinions

The Supreme Court’s decision drew two dissenting opinions. The first dissent, from Justice Clarence Thomas, focused on the legality of mailing drugs to patients. Justice Thomas claimed that the process of mailing the drugs violated the Comstock Act and that, as a result, drug manufacturers were not entitled to a stay that would allow them to continue to violate the law. The Comstock Act has been a point of contention from the beginning of the fight over mifepristone. For more on the Comstock Act, see our 2023 blog post on the initial foray into mifepristone litigation.

The second dissenting opinion came from Justice Samuel Alito who, as the Justice assigned to the Fifth Circuit, was the originator of the two weeks’ worth of administrative stays following the Fifth Circuit’s opinion. In his dissenting opinion, Justice Alito slammed the Court’s new stay order as “unreasoned” and claimed that the Court had failed to consider whether the drug manufacturers would suffer any truly irreparable harm if the Fifth Circuit’s opinion had been allowed to take effect.

According to Justice Alito, the 2023 REMS was part of a scheme to undermine the Court’s opinion in Dobbs permitting states to regulate the practice of abortion. He pointed to the efforts by states like Louisiana to restrict abortion, including through the dispensing of mifepristone, and how those efforts are being stymied through use of telemedicine and shield laws in more permissive states that refuse to allow their residents to be prosecuted for violating Louisiana’s abortion laws.

What Happens Now?

With the Supreme Court’s stay in place, the 2023 REMS remains the operative guidance for providers and pharmacies to dispense mifepristone. The stay will remain in place for the entire duration of the appeal in the Fifth Circuit and any subsequent appeal to the Supreme Court. The Supreme Court’s current docket is full and winding down to completion in late June. Additionally, the Court has started to fill up its October 2026 docket. So, it is unlikely that we will see resolution of this appeal until closer to the end of 2026 at the earliest.

However, the panel of the Fifth Circuit was fairly clear in its opinion of the 2023 REMS, and Justices Thomas and Alito have made their opinions of the REMS evident as well. There is a good possibility that at least 3 of the remaining 7 Justices will agree with their colleagues that the REMS should be vacated. If that were to happen, FDA would once again be able to enforce an in-person dispensing requirement for mifepristone. Providers and pharmacies should develop a contingency plan for complying with that requirement quickly if the Court does come to that conclusion and dissolve the stay.

Reed Smith will continue to follow the developments with regard to the regulation of mifepristone. If you have any questions about this or any other reproductive health issues, please do not hesitate to reach out to the authors of this post or to the health care lawyers at Reed Smith.