The dust settled and most immediate panic about the fate of mifepristone ebbed Friday night, after the Supreme Court put a widely panned lower court decision on ice for the foreseeable future.
Now, mifepristone will stay available in accordance with its regular restrictions for the months it takes for the case to reach the Supreme Court again. The stay is good until the Supreme Court either hands down its own final decision, or declines to take the case up when it’s appealed from the Fifth Circuit.
Supreme Court experts were reluctant to predict the outcome of an abortion case in front of this particular bench. But the patent lunacy of the lower court ruling — which defied a host of procedural and substantive precedents — opened the door for some very tentative optimism that even this Supreme Court would not bless it.
U.S. District Judge Matthew Kacsmaryk had ruled to deauthorize mifepristone’s Food and Drug Administration approval, which had been in place for 23 years. A Fifth Circuit panel, reluctantly concluding that it was too hard to shoehorn Kacsmaryk’s ruling into the six-year statute of limitations for challenging agency actions, decided instead to uphold challenges to every alteration to the drug’s regulatory scheme since 2016. That would have the practical effect of making branded mifepristone much harder to get, and potentially taking the generic version off the market altogether.
As a sign of the flimsiness of these arguments, a steaming Justice Samuel Alito didn’t even try to defend the merits of the lower court rulings in his protracted temper tantrum of a dissent. Justice Clarence Thomas also would not have granted the stay, though he didn’t join in Alito’s writing.
We can’t be sure, since the justices don’t have to record their dissenting votes in the shadow docket, how many justices supported issuing the stay. At the very least, we can be reasonably sure that the three liberals were joined by at least two conservatives, since five votes were needed.
None of this bodes well for the anti-abortion activists who had found such success at the lower courts.
Alito spent his dissent lashing out at his fellow justices who have criticized the Court’s increasing use of the shadow docket — including, notably, fellow conservative Justice Amy Coney Barrett — and accusing the Biden administration of being scofflaws, intent on ignoring any unfavorable Supreme Court ruling.
He also accused the FDA of gaming the judicial system — rich, when held up against the anti-abortion plaintiffs’ brazen judge shopping in this case — and criticized U.S. District Judge Thomas Rice in Washington, who is overseeing a separate mifepristone case and had ordered the FDA to keep the drug accessible as usual in the states involved.
In other words: It was a lot of bluster, and some friendly fire, but little substance. Even Alito, perhaps the most nakedly partisan ideologue on the Court, couldn’t bring himself to hold up Kacsmaryk’s ruling as legitimate.
And the actors the right-wing majority takes its cues from, or at least prefers not to anger, don’t seem poised to lambaste the Court, should it steer clear of such a spectacularly holey vessel to further restrict abortion.
Sen. Lindsay Graham (R-SC), who’s been pushing his 15-week federal abortion ban, said on CNN that he’d “live with” whatever the Supreme Court ultimately ruled.
Rep. Nancy Mace (R-SC) — granted, usually to the left of her party on abortion — told CNN that the suit “should just be thrown out quite frankly.”
They’re bolstered by the crickets from their Republican peers, most of whom seem eager to avoid discussing the particulars of the anti-abortion regime they helped establish.
Even the Wall Street Journal’s editorial board couldn’t bring itself to hype up Kacsmaryk’s ruling: “His legal mistake is overstepping his authority as a judge to conduct his own review of the abortion drug’s risks and benefits,” it wrote. “Congress has delegated such technical questions to regulatory agencies. It’s not the role of judges to redo an agency analysis.”
Nothing is a given with this Court majority, particularly on the issue of abortion. But the signs here indicate that this soggy handful of spaghetti thrown at the wall might be too much even for these justices to swallow.