Arguments over how much one state can regulate the commerce of another go back to the country’s first years, when New York imposed taxes on goods crossing the border from Connecticut and New Jersey. Maryland and Virginia fought for years over who governed the Potomac River. We now have a fight over a similar issue in American federalism — but it’s all happening in the shadows.
The issue is whether one state, in this case Louisiana, can prevent physicians in other states (including California, Massachusetts and New York) from mailing abortion pills to Louisiana residents. In 2024, Louisiana passed legislation that added the two medications most often used to induce abortions, mifepristone and misoprostol, to the state’s list of controlled dangerous substances, which also included Xanax, Valium, and muscle relaxants. Anyone possessing the drugs without a valid prescription could be sent to prison for five years. Except in very limited circumstances, abortion is banned in Louisiana, so it would be virtually impossible to legally obtain a valid prescription from a Louisiana healthcare provider.
The two-pill abortion cocktail — mifepristone and misoprostol — has become, by far, the most-used method of abortion in the U.S. The method increased from 25 percent of all abortions in 2015 to 65 percent in 2023, and 28 percent of the prescriptions for the medications came through telehealth. That includes consultation by women in states prohibiting abortion with physicians in states that permit it — with the doctors mailing the pills in plain envelopes to circumvent state restrictions.
Louisiana tried to stop the practice by indicting and seeking to extradite a California doctor, Dr. Remy Coeytaux, for allegedly mailing abortion pills to a Louisiana woman in 2023. But California, like many states, has a shield law, which protects its healthcare providers from being extradited to other states if what they did is legal within California. That raises the whole issue of whether a state can protect its citizens from actions that would be illegal in another state.
As that case simmered, two of the companies that manufactured mifepristone filed suit against Louisiana for trying to block mail-order sales of its products. The 5th Circuit Court of Appeals ruled against them, so the companies asked the Supreme Court to upend the lower court’s ruling.
That’s where things got bizarre. The Supreme Court’s May ruling was short. It did not decide whether or not to reverse the 5th Circuit but, instead, issued a stay, which put the lower court’s ruling in abeyance. That either ended the debate or tossed it back to the lower courts for further argument, which might or might not end up back in the Supreme Court.
It’s hard to handicap the next steps because there were no oral arguments that laid out the issues. There was no explanation from the court on its ruling. We know that two justices — Samuel Alito and Clarence Thomas — filed dissents. But we don’t know where the majority of the court ended up or whether the vote was close. We don’t know their reasoning and, most important, we don’t know how broadly to take the court’s decision to grant a stay.
Did they take the easy way out on a super-hot issue by granting a stay, knowing that would have the effect of allowing the continued interstate shipment of abortion pills? Or were they punting the issue until after the midterms? Were they mulling over the broad issues of interstate competition? Or were they looking for the narrowest possible escape? The court has fallen increasingly into the habit of using this “shadow docket” for major issues, failing to explain its reasoning, and it’s leaving us increasingly clueless about what the court is actually deciding — and why.
We know that this is a very important issue of state sovereignty. We just don’t have a clue what the court thinks or where this is going to end up.
But we do know one thing, from clues in the dissents filed by Thomas and Alito. Both refer to an earlier case on abortion pills involving the appeal of a Food and Drug Administration ruling by the Alliance for Hippocratic Medicine. This alliance was created in 2022 in Texas to advance the do-no-harm Hippocratic principles — and to use those principles to fight against abortion rights. Behind the group is a powerful but secretive coalition of other groups that are, in turn, funded by even more secretive donors. We don’t know who they are or how much money they are contributing.
So it’s federalism in the shadows: A volatile issue operating in a process where the key players are disguised on a subject that has been fundamental to American federalism for the last 250 years.
