A new escalation in the state abortion wars

On May 1, the 5th Circuit intensified the ongoing post-Dobbs struggles between anti-abortion and abortion-protective states to enforce their preferred abortion laws and policies outside of their borders. As noted in “The New Abortion Battleground,” these state abortion wars are a product of the post-Dobbs state-by-state patchwork of laws enabling and restricting abortion care, which include laws supporting state attempts “to impose their local abortion policies as widely as possible, even across state lines.”

The 5th Circuit’s action pertains to a lawsuit brought by the state of Louisiana and a Louisiana resident challenging the Food and Drug Administration’s (FDA) 2023 decision to finalize the removal of the in-person dispensing requirement for mifepristone, one of the drugs used in a two-pill regimen for medication abortion. The removal of this requirement has enabled providers to prescribe mifepristone via telehealth and mail the medication, in conjunction with a second drug, misoprostol, to women across the United States, including women living in states with abortion bans. Ruling in favor of Louisiana, the 5th Circuit stayed the 2023 FDA decision, immediately preventing providers nationwide from mailing the drug, even in states where abortion is legal. The 5th Circuit’s ruling briefly impacted abortion access nationwide, as, in addition to banning states, medication abortion via telemedicine is also prevalent in states where abortion is legal.

The 5th Circuit’s ruling came in response to a district court’s stay of the proceedings. The district judge made findings strongly in support of Louisiana’s position but stayed the proceedings at the request of the FDA, a defendant in the case, to allow the FDA to finish its ongoing review of whether modifications of current rules, known as Risk Evaluation and Mitigation Strategies (REMS), pertaining to mifepristone were necessary. This politically motivated review began after 22 attorneys general from anti-abortion states wrote a letter to Health and Human Services Secretary Robert Kennedy Jr. and (now former) FDA Commissioner Martin Makary requesting a review of mifepristone’s safety. In response to that letter, governors from the Reproductive Freedom Alliance, “a nonpartisan coalition of 23 Governors committed to protecting access to reproductive health care,” wrote to Kennedy and Makary urging them “to adhere to the careful, rigorous and extensive scientific analysis that the FDA has already undertaken to conclude that mifepristone is safe and effective” if they “intend[ed] to conduct this unnecessary review.”

Following the 5th Circuit’s ruling, two companies that manufacture mifepristone filed emergency applications with the Supreme Court seeking an administrative stay. Three days later, on the morning of May 4, the Supreme Court issued a stay and ultimately issued an order extending the stay until the matter is resolved through the pending appeal in the 5th Circuit or disposition of any petition for a writ of certiorari or final judgment by the Supreme Court. Following the Supreme Court’s May 4 order, providers resumed telehealth appointments to prescribe and mail mifepristone.

To be clear, the safety of mifepristone, whether dispensed in person or prescribed via telehealth and sent through the mail, is not actually in question. As explained by the Guttmacher Institute, mifepristone has an “exemplary safety record” that is “backed by decades of data showing very low complication and mortality rates, supported by leading US and global medical authorities, widely used in the United States and globally, and proven safe when accessed through telehealth or when self-managing an abortion without the involvement of a provider.”

The main reason the state of Louisiana sued the FDA is that its removal of the in-person dispensing requirement, which originally occurred in 2021 before the Supreme Court issued the Dobbs opinion, has enabled what anti-abortion states view as an end run around abortion bans post-Dobbs. As the 5th Circuit noted, “[b]y ending the in-person dispensing requirement, FDA opened the door for mifepristone to be remotely prescribed to Louisiana women.” The 5th Circuit interpreted the record in the case as showing “that the policy now facilitates nearly 1,000 illegal abortions in Louisiana per month.”

To further enable the provision of evidence-based medical care, abortion protective states like New York, California, Massachusetts, and Illinois, among others, have passed a variety of shield laws designed to protect providers from out-of-state criminal prosecutions and civil lawsuits brought by anti-abortion states. California has passed a law that allows Mifepristone and other drugs to be dispensed without the name of the prescriber, patient, or pharmacy. This law aims to make it harder for anti-abortion states to “amass evidence against shield-law providers,” along with providing some small degree of assurance to women concerned about the risk of identification via a patient’s name listed on a pill prescription. This law can have an impact across the nation because, as noted in Newsweek, providers in abortion-protective states, including New York, Washington, and Massachusetts, “rely on California pharmacies to ship the medication.”

Shield laws, coupled with the FDA’s removal of the in-person dispensing requirement, appear to be having an impact. As reported in the Wall Street Journal, in 2024, 1 in 4 abortions in the United States occurred via telehealth, with half of telemedicine prescriptions going to patients living in states with abortion bans, prescribed by “doctors operating in states with shield laws.” Moreover, as reported by the Society of Family Planning, “[t]he number and proportion of telehealth abortions provided under shield laws has increased over time,” with “nearly 15,000 abortions per month provided under shield laws” as of June 2025. As of December 2025, “telehealth abortions provided under shield laws make up nearly all abortions occurring” in states where abortion is banned.

Louisiana pulls no punches when expressing its view on impact: “[B]ut for the 2023 REMS, activists in New York and California could not blanket pro-life states like Louisiana with mifepristone by mail.”

To be sure, Louisiana has fought back in a number of ways. In addition to suing the FDA, it indicted a New York doctor and a California doctor for allegedly providing medication that caused abortions in Louisiana. Louisiana was also the first state to pass a law classifying both mifepristone and misoprostol as Schedule IV drugs under the state’s Uniform Controlled Dangerous Substances Law, alongside drugs such as the opioid narcotic Tramadol and the depressants Diazepam (Valium) and Lorazepam (Ativan). As of Oct. 1, 2024, those who possess these drugs without a valid prescription can be prosecuted and sentenced to up to 10 years in prison, although the law indicates “it shall not be a violation … for a pregnant woman to possess mifepristone or misoprostol for her own consumption.” (This exemption is consistent with other laws in Louisiana that criminalize abortion, including medication abortion, but exempt pregnant women from prosecution.)

It is outside of normal practice for a drug to be designated as a controlled substance absent evaluations to determine its “actual or relative potential for abuse,” “history and current pattern of abuse,” and any “risk there is to public health.” Misoprostol, a drug also used to treat stomach ulcers, has been approved by the FDA since 1988. Mifepristone, which is also used to treat Cushing syndrome, has been approved by the FDA since 2000. In response to the law, the Louisiana Society of Addiction Medicine, a nonprofit organization of health care professionals “dedicated to evidence-based methods of prevention, early intervention and treatment of addiction,” stated that it “goes against the spirit of the drug scheduling system, which is designed to classify substances based upon their danger, potential for misuse, and medical benefits.”

In addition, a September 2025 report issued by the New Orleans Department of Health indicated that the law’s new requirements and restrictions for misoprostol “have resulted in documented delays in access to care for women” relating to “an array of medically necessary, legal uses of the drug, including: assistance with the insertion of an intrauterine device (IUD); facilitation of fertility treatment, and management of miscarriage. Patients and providers also reported instances of delayed access to misoprostol for patients on the labor and delivery floor for treatment of postpartum hemorrhage.”

More broadly, as demonstrated by the 5th Circuit’s May 1 ruling that temporarily prevented providers from mailing mifepristone to any patients, Louisiana’s lawsuit to compel the FDA to reimpose the in-person dispensing requirement for mifepristone has the potential for nationwide impact. Not only would it restrict access to mifepristone in ban states, but it would also prevent providers in abortion-protective states from dispensing the drug through the mail to women living in those states. As findings from a study conducted pre-Dobbs and published in JMIR Public Health and Surveillance show, while “White, urban patients might prefer telehealth due to its convenience or privacy,” access to abortion through telehealth in states where abortion is legal “is key to promoting equitable access to abortion care” for “patients from groups facing structural barriers to abortion care, such as people of color, those living on lower incomes, those who are younger, and those residing in rural areas.”

Abortion providers have, however, anticipated the attacks on mifepristone, including the potential fallout from Louisiana’s lawsuit, and are prepared to answer them. While the combination of mifepristone and misoprostol is the standard medication abortion regime in the United States, abortions can safely and effectively occur with misoprostol only, even if not ideal. The Society of Family Planning notes that while “safe and effective across a range of gestational durations,” misoprostol-only regimens “increase potential for more immediate, intense, and prolonged side effects such as cramping, nausea, and vomiting, which can lead to more interactions with the health care system.” Telehealth and medication abortion for women living in ban states won’t end even if the current mifepristone REMS are modified, and mifepristone can no longer be mailed.

Following Dobbs, President Trump’s position, first articulated on the 2024 campaign trail, was that regulation of abortion would be left to the states. That stance was calculated to remove the federal government from the business of making decisions about abortion, at least in appearance, and the attendant political risks flowing from such decisions. Case in point: Although Trump previously bragged about overturning Roe v. Wade, during the 2024 campaign, candidate Trump tried to disavow Project 2025 and its explicit anti-abortion goals in an attempt to portray his future administration as “great for women,” as reported in Politico. Anti-abortion advocates took note of this tonal shift.

Fast forward to the present: The FDA’s agreement to review the mifepristone REMS illustrates the federal government’s inability to remain neutral and fully offload decisionmaking to the states. Post-Dobbs, portraying abortion regulation simply as a state matter was, among other things, an attempt to obfuscate the roles the federal government and the Supreme Court actively play in increasing or restricting access to abortion. Indeed, Louisiana’s lawsuit to compel the FDA to modify the mifepristone REMS will likely be resolved by the Supreme Court.

Mindful of the midterm elections, Trump is trying, once again, to thread a political needle. The FDA’s review of the 2023 REMS was an attempt to assuage the anti-abortion movement, although one that hasn’t been entirely successful, as reflected in reporting by the Washington Post: “top of mind for antiabortion leaders is what they see as the Trump administration delaying a study on the safety of mifepristone.” Clearly, neutrality is not a position the anti-abortion movement is prepared to accept: As noted by the New York Times, former Commissioner Makary “faced repeated calls for his firing from abortion foes who accused him of dragging out the timetable for a study of the safety of mifepristone … viewing the exercise as one that could support their efforts to restrict the drug’s distribution.”

At the same time, the FDA’s request for a stay at the district court level has likely aided in pushing a resolution of the lawsuit past the 2026 midterms—and, unusually, the FDA filed no brief in response to the mifepristone manufacturers’ emergency application to the Supreme Court seeking a stay of the 5th Circuit’s ruling. Consistent with this silence, deferring resolution of the case until after the election will allow the administration to continue the illusory posture of neutrality it has sought to create prior to the midterms.