Update: On Thursday, May 14, the Supreme Court halted the extreme Fifth Circuit Court ruling from May 1 banning telehealth distribution of mifepristone, in direct response to the abortion pill makers’ emergency appeal. This means mifepristone is still accessible via telehealth and through the mail while litigation challenging the Food and Drug Administration’s 2021 decision to allow clinicians and pharmacies to mail medications to patients after a telehealth consultation rules, brought by the state of Louisiana, moves forward. The FDA is also currently reviewing the safety protocols for mifepristone, meaning access by mail could still be threatened in the future.
The decision is unsigned, but Justices Samuel Alito and Clarence Thomas were named in their dissents. Misreading the law and counter to a century of president, Thomas suggested mailing abortion pills violates the Comstock Act, a backdoor method of enforcing a national abortion ban by restricting the shipment of abortion drugs as well as medical equipment used in abortions.
The ruling to allow the mailing of mifepristone was met with relief from abortion rights advocates, but also with growing frustration, defiance and anger at what many see as an exhausting cycle of temporary protections and looming threats. Feminists and reproductive justice advocates say patients should not have to live week-to-week wondering whether a handful of judges will allow them basic healthcare access.
In a widely shared Instagram post following the ruling, Physicians for Reproductive Health wrote: “You deserve better than your rights resting upon the whims of a club of nine 400-year-old nerds who don’t know anything about you. You deserve the dignity of having an abortion in the way that works best for you, not just with the crumbs the courts will allow.” The post also directly rejected antiabortion claims about safety: “Anti-abortion extremists do not care about your safety, they care about controlling you.”
The sharper tone reflects a broader shift in reproductive rights messaging as advocates increasingly frame access to abortion pills not as a temporary privilege granted by the courts, but as healthcare people are entitled to regardless of political ideology or judicial intervention. And that’s not going away. (Here’s how to order abortion pills, regardless of what the courts decide.)
Telemedicine Abortion Is Not Going Away: Julie Kay Reads the Tea Leaves on Mifepristone, Shield Laws and the Supreme Court’s Latest Deadline
Thursday, May 14, at 5 p.m. ET, the Supreme Court’s temporary stay in the mifepristone case is set to expire, once again leaving abortion providers, patients and advocates waiting to see whether the Court will extend the pause, or allow the Fifth Circuit’s restrictions on mifepristone to take effect.
If the Court does nothing on Louisiana v. FDA, the lower-court ruling could snap back into place, threatening mail-order and telemedicine access to mifepristone, one of the two drugs commonly used in medication abortion. But abortion rights advocates say the story does not end there. Telemedicine abortion networks, shield-law protections, advance provision and community-based access have already reshaped abortion care in the post-Dobbs landscape—and those systems are continuing to evolve.
Julie F. Kay, a human rights lawyer and founder and executive director of Reproductive Futures, has spent years working at the intersection of reproductive rights, telemedicine abortion and shield-law protections. She co-founded the Abortion Coalition for Telemedicine, challenged Ireland’s abortion ban before the European Court of Human Rights, and co-authored Controlling Women: What We Must Do Now to Save Reproductive Freedom.
… There’s a lot of chaos and confusion, and that’s quite deliberate. I think this is part of the antiabortion strategy to throw a bunch of marbles at our feet and see what happens. … They threaten. They chill. They confuse. And that can be as effective as winning a court decision sometimes.
Julie Kay
I spoke with Kay about what providers may do if the Supreme Court allows the Fifth Circuit decision to stand, why fear and confusion are central to antiabortion strategy, and why telemedicine abortion access is more resilient than the headlines suggest.
This conversation has been lightly edited for clarity and length.
Carrie Baker: What will providers do if SCOTUS allows the Fifth Circuit decision to stand?
Julie Kay: Providers are going to take a variety of tactics and options that they think balance their patients’ needs and their own needs to stay safe—and their patients’ needs to have access to effective, supported, affordable care.
I’ve talked to a range of different providers, some who are providing care within states, some who are providing across state lines, some who are serving all 50 states. Like everything in this country and in this space, they’re taking different tactics and having assessments done by lawyers and activists and others who can help them figure out what the best path forward is.
But there’s a lot of chaos and confusion, and that’s quite deliberate. I think this is part of the antiabortion strategy to throw a bunch of marbles at our feet and see what happens. And of course, the result is it hits hardest on the patients who are the most under-resourced.
We’re obviously all hoping that science will prevail in the short and long run.
Julie Kay
Baker: Let’s start with the shield-state providers. Do you see them, by and large, pivoting to misoprostol-only if the Fifth Circuit were upheld?
Kay: Again, I think it is going to be a variety of options from a variety of different providers—some who are more exposed than others, either because of where they’re situated or because of how public-facing and known they are, and how their own personal decisions and commitments, or the medical director’s feelings about misoprostol as an option versus mifepristone, factor in.
Part of the assessment also is: If these licensed practitioners providing certified medications from shield states are not able to provide mifepristone, they know that women and pregnant patients will seek care elsewhere. And that may be something that’s good and up to standards and up to our medical care and mission-driven—but it may also be something on the web that is just out there to profiteer.
Those are all the kinds of things that go into their decisions.
We’re obviously all hoping that science will prevail in the short and long run. This medication has been proven safe and effective. Mifepristone is used globally, and it’s been very successful and safe since telemedicine has come on the scene.
Baker: If this happens, and there’s this mixed bag among shield-state providers, will the shield-state providers that continue to provide telehealth with either misoprostol alone or potentially with both mifepristone and misoprostol be able to handle the need?
Kay: I don’t think capacity is an issue at this point for the telemedicine abortion providers. We’ve seen Aid Access have the capacity to meet the need. I can’t say what they’re going to do or not, but I know that the capacity is there.
It’s hard to tell, though. If everything switches in the model, and telemedicine has become increasingly popular and continues to be, we’ve seen an uptick in conversation and in patients or people trying to access advance provision.
Every time we have a bad ruling from the Supreme Court, starting with Dobbs and everything since, we see a spike in women and people who can get pregnant trying to access not just advance provision of mifepristone and misoprostol, but also emergency contraception. Right after Dobbs, we saw an increase in requests for long-acting contraceptives.
Women get that these things are so carefully interrelated—that the restriction on access to mifepristone is perhaps the first step as the antis continue to wage their campaign against contraception, abortion, same-sex marriage, women’s rights, gender equality. It’s part of that whole package of control and perpetuating a traditional, stereotypical view of how the world works.
Baker: What about FDA enforcement? The Court can direct the FDA, but what does enforcement actually look like?
Kay: They can direct the FDA. They can void the latest REMS, which took away the in-person provision. The court can command the FDA, and then the question is: What does FDA enforcement look like?
FDA enforcement is historically against manufacturers and distributors. Providers—clinicians—are regulated by the state and at the state level. This is something we’ve looked into a lot because providers, doctors and advanced care practitioners historically have the ability to go off-label. They treat the individual before them and do what’s best practice.
If there’s a doctor who is not practicing safely or within the law, then the state would go after their licensing. That’s at the heart of the system of regulating medical practice: The state regulates those within its boundaries.
So if you look at what would happen if the REMS are violated, providers are in a different space than manufacturers and distributors. Some of them are interpreting that in ways that will determine what their next best steps are as far as practice and potential consequences.
We now do not have a chair of the FDA, and I don’t really see, under this administration, getting one that recognizes reproductive freedom as a human right. But nonetheless, there is discretion within the FDA. It really matters who’s at the head of the FDA. It matters who’s in state government, because it matters how and whether they’re going to enforce them or not.
You have governors like Gov. Healey and Gov. Hochul who have really stood up strongly for telemedicine and shield laws. They’re going to do what they can to support the provision of best-practice care and the physicians within their state, who they license, regulate and have authority over. In other states it may be different. At the FDA level, it may be different.
That ties the knot of what matters and why these particular providers and these provisions in these shield states have been so important.
Baker: So are you saying that the FDA could potentially stop the manufacturers and distributors from sending the pills to providers that were mailing pills, but couldn’t go after the providers themselves?
Kay: They have direct authority over the manufacturers and distributors. They have some authority over providers, but they have historically not directly regulated the practice of medicine.
They’ve gone after providers who are manufacturing narcotics or prescribing narcotics and doing things that are against patient interests or bad practice of medicine. Our pro bono attorneys couldn’t find a case where somebody who was safely prescribing proven medication that had been approved by the FDA for years, and used globally, all of a sudden was gone after in any aggressive manner.
But when I’m talking to providers and we’re having these conversations, abortion exceptionalism always comes up. We don’t know if that would be the FDA, the Department of Justice, those kinds of things.
And as soon as you start talking about what could happen, it freezes things. That goes back to this throwing-the-marbles-on-the-floor approach. Let’s put it out there. Let’s scare people.
The antis know that. The same way we’ve been listening to Comstock be thrown around for a couple of years now. The same way that right after Dobbs, the second the decision was out, they said: We’re going to get you for aiding and abetting.
They threaten. They chill. They confuse. And that can be as effective as winning a court decision sometimes.
Baker: What about states like Illinois, which passed a law saying that if the FDA restricts mifepristone, the state is going to authorize it?
Kay: I’m more familiar with the California one, but there’s a lot that states can do to protect practitioners within their state from being charged with misbranding or other licensing liability or repercussions.
We’ve been pushing Gov. Hochul to sign the one that’s on her desk that would similarly give providers another layer of protection.
It would say that the state is not going to go after providers who use medications that have been proven safe and accepted by the WHO. It’s really a carve-out to the regular misbranding provision so that if the label does not exactly match, the state is not going to go after you for that.
All these laws are another layer of protection. I always think the shield laws should have been called “helmet laws,” because they’re not absolute. But people are going to ride bikes. They need helmets. They need better helmets.
What we’ve really been working to do this year is to beef up the original shield laws with things like the Patient Privacy Protection Act, so that patients can take their names off the label.
Baker: So the prescriptions would only have the name of the practice on them, not the name of the doctor or the patient?
Kay: The Patient Privacy Protection Act is important for a couple of reasons. I worked in domestic violence a long time ago and know that the most dangerous time for a woman is when she’s pregnant.
We know that these cases aren’t coming from the government tracking your phone or any kind of Handmaid’s Tale situation. They’re really coming from what I call the angry men of Texas. They’re coming from partners and ex-partners who are collaborating with anti-abortion state officials to bring cases against providers because they don’t like the decision that their partner made or their ex-partner made.
We also know that even within a domestic violence or interpersonal violence situation, it’s often used as a threat: If somebody finds out, they can threaten to reveal your private information to your family or employer, immigration authorities, all those kinds of things.
So it’s that immediate level of protection for the patient, and it’s something that providers need and patients are also entitled to.
Baker: What do you think the Court is going to do?
Kay: I am hoping that they keep the stay in place. I am hoping that they continue to not let the in-person piece go into play.
At the end of the day, the Supreme Court hates abortion. They hate chaos. They hate, most of all, having their own reputation further denigrated. They’ve earned a lot of hits.
I think they need a bit of stability. There are some serious standing questions still at issue. This is coming back from the Fifth Circuit, who was the misbehaved child in the AHM case. I’m hoping the Supreme Court prioritizes that and tells them: Hold on. This hasn’t gone through trial. This is really messing with the science.
Again, we see voices from the pharmaceutical community broadly coming in and saying: Don’t mess with the FDA process. This makes no sense. It destabilizes approval for all medications.
Louisiana proposed in their brief a very expedited cycle. They’re trying to get this heard, if it goes to cert to the Supreme Court, either on the standing issue or, hopefully not, on the merits. They asked for expedited schedule for oral argument without briefing, which seems nuts to me and to those who watch the Court.
But the midterms are looming in all this. The DOJ did not file papers on behalf of the FDA. That speaks for itself.
Baker: Meaning they just don’t want to touch it?
Kay: They want Louisiana to do their dirty work. They want to have their cake and eat it too.
Trump is very anti-abortion. He appointed the justices who were appointed to overturn Roe, and they did. He’s done more harm to abortion rights than any president. But he also is very pro-reelection and presidential power, and he knows that Americans are overwhelmingly supportive of abortion rights.
What we’ve seen his administration do is take tactics that are more subtle, so to speak: carving out contraception from Title X, putting up this god-awful moms.gov page.
I am hoping the Supreme Court gives some time and space and breathing room. Last week was a test balloon, and they saw that telemedicine is going to continue. It’s not going away—whether it’s through misoprostol or mifepristone, whether it’s through exploring all the options, or whether it’s through more community-driven networks. It’s not going anywhere.
But if it’s misoprostol-only, there are some unpleasant and painful side effects for women that don’t have to be there. We need to let it be known that we’re messing with science and access to healthcare and accepted healthcare.
Baker: The 2024 Supreme Court case dismissing a challenge to mifepristone was unanimous that the plaintiff doctors lacked standing. I know the issues are different between a private group of doctors and the state of Louisiana. How much stronger is the state standing case than the private doctor standing case?
Kay: I think there is a difference. Is it a discernible difference? The tactic of wearing away and wearing away at standing is one that we’ve seen, and Justice Thomas particularly in the abortion context has always been questioning well-established law about physicians representing patients.
I think the anti-abortion movement is trying to exploit those and see what it can do. But it’s very clear that it costs the state of Louisiana more if a woman on Medicaid carries a pregnancy to term than if somebody is looking to get emergency care.
As we know from telemedicine studies, the vast majority of the time it is not an emergency situation when a pregnant person goes to the emergency room. It is a need for either misoprostol or an ultrasound, those kinds of things. So the dollar figures are low. The math doesn’t work out because a pregnant person delivering on Medicaid in Louisiana is always going to cost more, if you put it in raw economic terms.
But they’re fishing. They can’t find a pregnant person who has taken these medications who is saying, “I was harmed,” or “I want to sue my doctor.” That doesn’t mean that it always goes perfectly, but things are going very well for telemedicine. It’s been very effective and successful.
I think that’s something that the anti-abortion movement predicted well before a lot of the abortion rights movement did. So we’re seeing it all come to public attention now.
Baker: So you think they have a weak standing case?
Kay: Yes.
Baker: Other than New York and California, are there other states strengthening their shield laws in anticipation of the FDA potentially pulling back the 2023 REMS?
Kay: We’re trying to get new shield laws, and those new shield laws kind of have a full package.
We’ve been working a lot in New Jersey. Their gender-affirming care bill should go through, and we’ve been speaking to activists there for a while now and helping them draft legislation.
We’ve worked a lot with folks in Maryland, though unfortunately that didn’t move forward. We’ve had conversations in Illinois about upgrading their shield bill from a travel shield bill to a full telemedicine shield bill.
Five years ago, nobody knew what the Comstock Act was. Within the movement, it’s become a household word.
Julie Kay
Baker: What about Comstock? The antis are pushing the DOJ to enforce Comstock to prevent the mailing of misoprostol and potentially other things used to do abortions. Are you seeing that ever happening?
Kay: Right after Trump was elected, that was my biggest fear. It was like, okay, it’s going to be like the gag rule. He could just flip it in a day. And he didn’t.
To me, that says there is someone in the administration who acknowledges how disruptive this would be. The Supreme Court will do kind of whatever it takes to limit abortion access. They’ve proven that. But then something kind of pumps the brakes: capitalism, judicial process, all those kinds of things.
I think that’s the same thing at the federal level. What would it mean? How would it even be enforced? How would it look?
Others in the movement have done an amazing job in getting Comstock known to be what it is. Five years ago, nobody knew what Comstock was. Within the movement, it’s become a household word.
It hasn’t happened. I think it was definitely a monster under the bed, but it’s been a quiet one. I think it would be impossible to implement and really make the administration look ridiculous on some level. That may be part of their assessment.
But the limitation of the shield laws is that they are very strong and effective in state-by-state action. We do have to be aware that if the federal government steps in, as they have with ICE, its power supersedes state-level power. That’s how our Constitution, how our democracy, was set up.
We can resist. And we can vote.
Baker: What about the Texas cases against doctors in New York and California that challenge shield laws in those states? Where do you see those cases going?
Kay: The shield laws have really stood strong in those state-level cases.
At the state court level, Gov. Hochul and Gov. Newsom have really stood up to protect the providers from California and New York who had warrants for extradition brought against them. In the civil case in New York, the court clerk heroically stood up—I did not have that on my bingo card—and that was held up by a state court.
We’ve seen attorneys general reaching out to law enforcement to be very proactive in explaining the law. We’ve seen new provisions about what happens when there’s a subpoena. The attorneys general have been really great partners on this.
A couple of years ago, “untested” was the word everyone was throwing around. It’s like, they don’t need to be tested. We didn’t say that with marriage equality. We charged forward. And we charged forward with telemedicine.
It’s proven to be an incredible success, both at the patient level and at protecting practitioners and funds and supporters and everybody who’s been involved with them.
The shield laws have really stood strong in those state-level cases. … In the civil case in New York, the court clerk heroically stood up—I did not have that on my bingo card—and that was held up by a state court.
Julie Kay
Baker: Isn’t Texas challenging the constitutionality of New York’s shield law?
Kay: There are cases coming out of Texas, the civil ones, and some in federal court, which is different and problematic. But what we’ve seen are that the factual basis and the plaintiffs in those cases—let’s just say they’re not the top-tier ones that I would want to bring a test case with.
Baker: So there’s nothing roaring through the courts at this point challenging shield laws?
Kay: No. I think back in 2024, when that first case was brought against the New York provider, we thought they were looking for a fast pass up to the Supreme Court—and they weren’t.
We have a very good legal team that works with Reproductive Futures and protects all the shield-law providers who are actively providing to all 50 states. That civil and criminal defense has been vital, both for protecting individual practitioners and for partnering with us on how we create new protections at the state level, and for doing that deep-dive research on questions like: What does a stay of a stay mean? What does it look like?
I think we’re well prepared for this. Do I wish it weren’t happening, and that we were just going ahead as if this is good, safe, normal practice—which it is within states and serving women and pregnant people in rural areas and everything? Yes.
Even in states that are abortion-friendly, telemedicine is still incredibly popular. In New York City, the Department of Health and Hospitals has a program that’s functioning well. And yet we’re looking at Louisiana trying to choke off all services nationwide—or at least set them back significantly.
Look to these trusted groups if you or a loved one needs to know more about reliable abortion care:
- A one-stop-shop for abortion seekers: I Need An A
- Safe websites to buy abortion medication: Aid Access, Plan C Pills, Abortion Finder
- If you need help affording abortion care, contact an abortion fund near you.
- To protect your digital privacy when planning your abortion, click here.
- For free legal help as a patient or doctor, call If/When/How’s Repro Helpline: 844-868-2812
- For medical advice, contact the Miscarriage & Abortion Hotline: 833-246-2632
- If you need to know the abortion law in your state, look to the Center for Reproductive Rights.
