Major breaking news from the United States Supreme Court yesterday. The Court stayed a Fifth Circuit order that had paused the Biden-era FDA regulations allowing mifepristone — the abortion drug — to be prescribed via telemedicine and shipped through the mail. Justice Clarence Thomas and Justice Samuel A. Alito, Jr. dissented. And in a twist the progressive left has not yet connected, this stay just built a powerful new argument for the Trump administration’s effort to legalize mailing handguns through the United States Postal Service.
An Emergency Stay With No Emergency
The Fifth Circuit panel — Judge Kyle Duncan, Judge Kurt D. Engelhardt, and Judge Leslie H. Southwick — had stayed the 2021 and 2023 FDA changes that loosened the mifepristone REMS (Risk Evaluation and Mitigation Strategy), eliminating the in-person dispensing requirement and permitting telemedicine prescriptions and mail shipment. Judge Duncan’s opinion was direct. The merits, he wrote, “plainly favor Louisiana and the FDA does not contest it,” and the agency had “essentially acknowledged APA procedural deficits with respect to mifepristone by stating that its intention to review the mifepristone regulatory framework was precipitated by ‘the lack of adequate consideration underlying the prior REMS approvals.’”
To obtain emergency relief from a court of appeals stay, the moving party must show irreparable harm. Here, the moving party is asking the Court to allow conduct that violates two layers of law. The Comstock Act, codified at 18 U.S.C. § 1461, makes it a federal crime to mail any “drug … for producing abortion.” Louisiana state law criminalizes performing an abortion except to save the life or health of the mother. The Trump FDA has refused to file a brief, has announced its own safety review of mifepristone that will run into next year, and has publicly stated it will not enforce the in-person dispensing requirement even if reinstated. The manufacturers face no enforcement risk.
Thomas and Alito See Through It
Two justices dissented from the stay on different grounds.
Justice Thomas would have denied the stay outright. He wrote:
“They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Justice Alito dissented separately. He called the stay “a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization” — the 2022 ruling that returned abortion regulation to the states. He also flagged the Trump FDA’s posture: no brief, a pending safety review, a public commitment of non-enforcement. There is no irreparable harm to anyone, he concluded, justifying emergency relief.
Both dissents land cleanly. Yet five justices voted to keep the abortion pills moving in the mail into states where the underlying conduct is criminal under both federal and state law.
Mifepristone Travels — Handguns Don’t?
Now connect the dots. The Office of Legal Counsel at the Department of Justice, at the request of Attorney General Pam Bondi, issued a fifteen-page memorandum opinion in January concluding that 18 U.S.C. § 1715 — the 1927 federal statute classifying “pistols, revolvers, and other firearms capable of being concealed on the person” as non-mailable — is unconstitutional as applied to constitutionally protected firearms. The OLC’s framing tracks the position I have been making for years. Handguns are the quintessential self-defense weapon under District of Columbia v. Heller, 554 U.S. 570 (2008). There is no historical analog under New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), for a blanket federal ban on shipping concealable arms. The Postal Service is a state actor, and a state actor cannot infringe a right the Constitution protects. The Postal Service has now proposed a rule that would make lawful handguns mailable on the same terms as lawful long guns. Public comments are open.
A Fortiori — From the Greater to the Lesser
This is where yesterday’s mifepristone order does my work for me. The progressive left has just persuaded five Supreme Court justices to let abortion pills travel in the mail into states where the underlying conduct is criminal under both federal and state law — and to do so even though there is no constitutional right to an abortion. The word “abortion” does not appear in the text of the Constitution. Dobbs settled that.
Compare the right to keep and bear arms. The word “arms” appears in the text of the Second Amendment. The Supreme Court has affirmed in Heller, McDonald v. City of Chicago, 561 U.S. 742 (2010), and Bruen that the right is individual, fundamental, and binding against federal, state, and local actors. Under the legal doctrine of a fortiori — from the greater to the lesser — if the left can ship a non-constitutional, federally criminalized abortion drug into a state where the conduct is itself criminal, then every law-abiding American can ship a federally lawful, constitutionally protected handgun across state lines. The argument is unanswerable on the left’s own terms.
One last point. The only way a handgun harms anyone is misuse — intentional or negligent. Used as intended, a handgun causes no harm. Mifepristone is the inverse. Used exactly as prescribed, it carries real medical risk: hemorrhage, shock, and in some cases death. The left has just convinced the Supreme Court that the more dangerous product, used for a non-constitutional purpose, must travel in the mail into states where it is illegal. The less dangerous product, used for a constitutional purpose, must follow a fortiori.
Comments on the USPS proposed rule are open. Someone out there should put exactly this argument in writing.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.