The Abortion Pill on SCOTUS’s Shadow Docket (with Mary Ziegler)

In this episode of Stay Tuned with Preet, host Preet Bharara is joined by Mary Ziegler, law professor at UC Davis and expert on reproductive rights law, to dissect the latest legal battle over mifepristone, the abortion pill, as it reaches the Supreme Court’s shadow docket. The discussion centers on a Louisiana-led lawsuit challenging the FDA’s 2023 decision to allow telehealth access to mifepristone, with the state arguing it undermines its sovereign authority and incurs public health costs. The Fifth Circuit issued a nationwide block on telehealth access, which the Supreme Court temporarily stayed—only for Justice Alito to extend the stay, signaling internal court division. Ziegler explains the complex standing arguments, the lack of conclusive evidence linking Louisiana’s costs to the FDA’s policy, and the broader political tension between conservative states and a seemingly inactive Trump-era FDA. She also highlights the surprising legal argument rooted in the 19th-century Comstock Act, which could criminalize mailing abortion medication—a claim that has drawn interest from Justices Alito and Thomas. The episode underscores how regulatory continuity, political will, and the shadow docket’s opacity are shaping one of the most consequential reproductive rights cases in years. Ziegler emphasizes that this is not a final decision but a preliminary injunction on the shadow docket, where the Court’s lack of transparency makes predicting outcomes nearly impossible. The episode reveals a deep institutional crisis: the FDA’s failure to conduct a promised safety study on mifepristone, despite repeated delays and political pressure, has empowered conservative states and activist groups to step in. This creates a paradox where the very agency meant to ensure drug safety is perceived as inactive, fueling legal challenges from both sides. The conversation ends with a warning: without clear, consistent regulatory oversight across administrations, Americans cannot rely on the safety of drugs like mifepristone, and the courts are left to resolve political disputes under the guise of legal procedure. The episode concludes with a call to action for listeners to support the podcast and stay informed through the Insider feed.