If Only Women Were Corporations

On May 14, 2026, the Supreme Court ruled seven to two that the abortion drug mifepristone can continue to ship by mail. The Court did not issue a justification because it was a shadow docket ruling. Justices Thomas and Alito dissented, which means that Republican-nominated Justices Roberts, Barrett, Kavanaugh, and Gorsuch joined the three Democrat-nominated Justices Kagan, Sotomayor, and Jackson to rule in favor of allowing mifepristone to be ordered by mail.[i]

The ruling was expected because of what is known as the Dormant Commerce Clause, which prohibits states from passing legislation that discriminates against or excessively burdens interstate commerce.[ii]

The Court’s ruling overturned the New Orleans-based 5th U.S. Circuit Court of Appeals May 1 ruling that mifepristone must be dispensed in person, and not through the mail, which it cannot be in Louisiana because of the state's restrictive abortion law. Louisiana sued both manufacturers of mifepristone: Danco Laboratories LLC and GenBioPro Inc. On May 4, Supreme Court Justice Samuel Alito paused the ban to give the Court time to work through the issue.

This is the second time anti-abortion activists have tried to prevent women from obtaining mifepristone in states that outlaw abortion. The first time, the Court ruled that the anti-abortion activists that sued lacked legal “standing” because they weren’t directly affected by the FDA’s actions. Mifepristone was approved by the Food and Drug Administration in 2000.

The 5th Circuit said Louisiana had standing in the two suits against the drugmakers because the availability of mifepristone was undermining the state’s abortion ban.[iii]

This ruling begs the question: if women were corporations, could they benefit from the Dormant Commerce Clause and regain their reproductive rights?

[i] Amy Howe, “Supreme Court allows for access to abortion pill by mail for now,” SCOTUSblog, May 14, 2026, https://www.scotusblog.com/2026/05/court-allows-for-access-to-abortion-pill-by-mail-for-now/.

[ii] “Dormant Commerce Clause,” Cornell Law School Legal Information Institute, Accessed May 18, 2026, https://www.law.cornell.edu/wex/dormant_commerce_clause.

[iii] Howe, “Supreme Court allows for access to abortion pill by mail for now,” see note 1.