The Supreme Court granted the Department of Justice’s emergency request to temporarily halt lower court rulings that would have reimposed restrictions on mifepristone that the Food and Drug Administration (FDA) had lifted in recent years.
The stay is in place until 11:59 p.m. ET Wednesday. The anti-abortion plaintiffs’ response to the government’s request for a stay is due by noon on Tuesday.
It’s just an administrative stay, temporarily putting the lower court orders on ice until the full Supreme Court can decide on the merits of the case. Without it, the restrictions on mifepristone would have taken effect nationwide on Saturday.
“The idea would just be to keep the ruling on hold until the Supreme Court can take a closer look at the merits and decide whether to issue a longer stay pending appeal,” Jessie Hill, associate dean and professor at Case Western Reserve University School of Law, told TPM.
The stay does not guarantee that the right-wing bench will ultimately reverse the lower courts.
While the Supreme Court deciding to uphold the lower court ruling would drastically curtail accessibility to mifepristone — hugely significant, as medical abortions comprise over half of those performed in the United States — it would also have even farther reaching effects.
The ruling by Judge Matthew Kacsmaryk, much of which was upheld by the Fifth Circuit, endorsed some very unorthodox theories on standing. They allowed the plaintiffs, a group of anti-abortion doctors, to claim that they’re injured by mifepristone not because they prescribe or take it, but because they may one day have to treat a woman suffering from the drug’s supposed side effects. The FDA can expect many, many challenges to its authority if such a tenuous link passes muster to sue.
If the Supreme Court majority ultimately prioritizes its hostility to abortion access over the standing issues, the FDA may be able to mitigate some of the damage, depending on how it uses its enforcement discretion.
So far, the White House told TPM that it wouldn’t “ignore” the lower court rulings and keep mifepristone on the market as usual, but it’s unclear whether that stance will hold if the administration is defeated at court.
Read the order here: