Previously, dear reader, we told you about how the Supreme Court issued and extended an administrative stay until today at midnight in the litigation around the FDA’s regulations related to the abortion pill. The purpose of that stay was simply to give the whole court time to decide whether to grant a longer stay, and the answer is that they did grant such a stay.
BREAKING: Supreme Court stays order banning mifepristone. This means mifepristone remains 100% legal and accessible in states where it is legal.
Thomas and Alito dissent.https://t.co/Fmn64gkbOS pic.twitter.com/Vv9HqB1PbB
— Mark Joseph Stern (@mjs_DC) April 21, 2023
The bottom line is this makes the abortion pill available under the current rules of the Biden administration, such as allowing for it to be delivered by mail and to be taken outside of a doctor’s direct supervision until the Fifth Circuit and the Supreme Court are done hearing the case. Chris Geidner has a write-up, here:
HUGE NEWS: Medication abortion access remains protected — for now — on the current terms of FDA approval, including the ending of the in-person dispensing requirement for mifepristone.
Read it all at Law Dork now: https://t.co/ukkAOGXfEg pic.twitter.com/4aXZpGz9V0
— Chris Geidner (@chrisgeidner) April 21, 2023
As Mr. Geidner notes, just because it only states that two justices dissent, doesn’t mean the vote was 7-2. It just means that for whatever reason they are the only two announcing publicly that they dissent.
Gabriel Malor concurs and adds some other thoughts:
Recall that because this is on the emergency docket we don't know how the other justices voted.
We only that there were *at least* five who voted to grant the application for a stay.
— Gabriel Malor (@gabrielmalor) April 21, 2023
So it would be inaccurate to report (for example, not looking at anyone in particular) that this was a 7-2 vote. We don't know that.
All we know is that there were at least five for the stay. And Justice Thomas and Alito were publicly against it.
— Gabriel Malor (@gabrielmalor) April 21, 2023
Justice Alito concludes by saying that "[c]ontrary to the impression that may be held by many," opposing the stay doesn't express any view on the merits.
Many who? Other justices? The public? pic.twitter.com/gH7xihWAn8
— Gabriel Malor (@gabrielmalor) April 21, 2023
We’ll also note that previously Gabriel Malor made this prediction:
Someone's writing a dissent… https://t.co/JQtQo3wVEH
— Gabriel Malor (@gabrielmalor) April 19, 2023
So that tweet genuinely aged well.
As for Alito’s dissent, the crux of his argument is that for a stay you have to show that either the FDA, the drug companies, or possibly women seeking an abortion will be ‘irreparably harmed’ by a delay and right now, under the prior stay granted by the Fifth Circuit, the abortion pill can still be distributed and women can still get lawful abortions using it: it is simply less convenient than before.
The most interesting part, however, was when Alito denounced one of the dirtiest tactics that liberal administrations engage in on the state and federal level, discussing the injunction issued by the federal court in Washington (state):
The Food and Drug Administration (FDA) has engaged in what has become the practice of ‘leverag[ing]’ district court injunctions ‘as a basis’ for implementing a desired policy while evading both necessary agency procedures and judicial review.…
The Washington District Court enjoined the FDA from altering its current practice regarding mifepristone—something that the FDA had never hinted it was contemplating. The FDA did not appeal that appealable order, and when seven States that might take such an appeal asked to intervene, the FDA opposed their request.
In other words, in the Washington case, an activist group sued the FDA to try to get the courts to enact their policy preferences. The FDA allegedly barely fought against this activist group because they wanted them to win. That resulted in an order that ‘forced’ the FDA to do what they wanted to do anyway but would have been more difficult if they had used ordinary regulatory procedures. And then not only did they refuse to appeal that order, but they also tried to stop anyone else from appealing. It’s dirty and it’s good that the courts are starting to take notice of it.
In any case, this stay is not very good news for anyone who believes that the FDA should not be subverting state abortion laws, but that is no guarantee that they will win in the long run. We will keep you posted as things develop.
Join the conversation as a VIP Member