The Supreme Court ruled Friday to pause lower court rulings that would have imposed restrictions on mifepristone, keeping the drug accessible while the case proceeds.
Justices Samuel Alito and Clarence Thomas would not have granted the stay.
Despite the fact that the initial lawsuit rested on dubious standing grounds and was infused with anti-abortion myths, it was strategically placed to travel through a circuit of notoriously right-wing courts up to the far-right Supreme Court.
Even those pounding the alarm about the dangers this case would pose to the Food and Drug Administration’s functioning, drug approval process and the whole pharmaceutical industry harbored doubts that the Court wouldn’t take any opportunity to further restrict abortion rights.
But the widely panned lower court rulings proved a bridge too far even for the Supreme Court that overturned Roe v. Wade.
In his dissent, Alito reels off a series of critiques lodged against the conservative majority for using the shadow docket to hand down rulings with no explanation.
“I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here,” he huffs. “As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market.”
The Fifth Circuit Court of Appeals’ decision, at the least, would nix the FDA’s approval of generic mifepristone, potentially taking it off the market.
He then argues that nothing the court says really matters, since the FDA has enforcement discretion in which drugs to target.
“The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” he writes.
The Biden administration has resisted being pinned down on what it would do if it loses in court, though a White House spokesperson told TPM that it won’t “ignore” the right-wing rulings to keep mifepristone accessible no matter what.
“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” President Joe Biden said in a statement Friday. “I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.”
The Supreme Court imposed an administrative stay last Friday — which it extended a couple more days — to give the justices more time to examine the case. Many court watchers speculated that the extra time was tacked on to give justices time to write their dissents — the question was which justices were writing them.
The case will now proceed at the Fifth Circuit, which still has to rule on the merits. It’s on an expedited timeline there, with briefs due throughout May. The timing for a final decision from the appeals court is still uncertain; a likely return to the Supreme Court could come after that. The high court said the stay would remain in place until it either refused to take the case or issued a final ruling.
An initial 5th Circuit panel gave the anti-abortion group a favorable ruling, upholding challenges to mifepristone that the FDA had lifted in recent years and potentially removing the FDA approval of generic mifepristone altogether.
A coalition of blue states joined the docket, pointing out that any restriction of mifepristone enforced nationwide would impinge on their rights as states to determine their own abortion regimes — something the Supreme Court claimed was its intention in Dobbs.
Read the ruling here: