A single Supreme Court Justice, taking the smallest, temporary yet significant step to deal with a major legal controversy, agreed on Friday afternoon to allow the abortion bill (mifepristone) to remain available nationwide at least for five more days.
Justice Samuel A. Alito, Jr., acting alone in his capacity as the Justice handling emergency requests originating in Texas, issued two one-page orders that at least delay until next Wednesday just before midnight a Texas federal judge’s order that would have blocked the pill’s distribution nationwide.
If Alito or the full Court had not acted today, the judge’s ban would have gone into effect at 1 a.m. tomorrow. It now is on hold until 12:59 p.m. next Wednesday, meaning that the legal status of mifepristone will remain unchanged at least until then.
The temporary orders provide no explanation, and say nothing about the legality of the ban. The postponements were labeled only as “administrative,” thus deciding nothing but timing. The orders told the anti-abortion doctors and medical groups that are challenging mifepristone to file their legal views by noon next Tuesday.
Alito probably will then pass on the case to the full Court. It is uncertain at this point whether the Court will take final action on it during its current term, which is due to run until late June or early July.
Earlier in the day Friday, the Biden Administration and Danco Laboratories, the maker of Mifeprex (the brand-name version of mifepristone), had separately asked the Court to put the ban on hold. Both had predicted chaos throughout the drug industry and significant harm to women if the ban had gone into effect early tomorrow. GenBioPro, Inc., which makes a generic version of mifepristone, supported the two requests.
A week ago, a federal trial judge in Amarillo, Texas, District Judge Matthew J. Kacsmaryk, ruled that the Food and Drug Administration did not have the authority to approve mifepristone initially in 2000, and did not have the authority since then to relax any restrictions on the use of the drug. The judge rejected the FDA’s initial and repeated conclusions that mifepristone was safe and effective if used as FDA allowed.
His ruling to stop distribution marked the first time in history that the FDA had been ordered by a court to stop the marketing of an approved prescription drug.
Normally, mifepristone is used in combination with another drug, misoprostol, to end a pregnancy early in the term – that is, up to the end of ten weeks. The drug combination has been used by more than 5 million women to obtain abortions in a way that is considered safe and effective, and also safer and less expensive than a surgical abortion.
Judge Kacsmaryck’s nationwide ban was partly blocked by a federal appeals court last Wednesday near midnight, but that decision kept in effect a series of restrictions that would have made the drug far less available, including a ban on receiving it by mail and requiring prescription only by a doctor, with three visits to the doctor before the drug could be prescribed. FDA had allowed women to take mifepristone at home.
Alito’s orders said nothing at all about what the appeals court had done. Instead, the orders applied only to Judge Kacsmaryk’s order. That had the effect of making it unnecessary even to comment on what the appeals court had done, since blocking the Kacsmaryk order swept more broadly.
Under Supreme Court rules, a single Justice has the power to issue a temporary delay like those Alito issued. It would take five of the nine Justices’ votes to block the Kacsmaryk order in a definitive way and to decide the controversy finally.
It is widely expected that, when the Justices do act on the legal issues, they are likely to be divided.
The controversy over mifepristone and abortion-by-medication is the most significant legal dispute to arise in the nearly ten months since the Court, in a split decision, ruled that the Constitution no longer provides a right for a woman to end a pregnancy. Five Justices voted to overturn Roe v. Wade and another major precedent, and Chief Justice John G. Roberts, Jr., voted in a more limited way, to uphold a specific state law at issue.
There were three dissenters, one of whom, Justice Stephen G. Breyer, has since retired and been replaced by Justice Ketranji Brown Jackson.
In last June’s decision, in the case of Dobbs v. Jackson Women’s Health Organization, the majority said that it was returning the issue of abortion rights to the states or to Congress. In the filing Friday by the mifepristone maker, Danco Laboratories, its lawyers complained that Judge Kacsmaryk and the federal appeals court had taken away the choice of perhaps half of the states, which want to protect the right to abortion.
A group of 17 of those states, plus Washington, D.C., obtained an order last week from a different federal trial judge, ordering FDA to maintain mifepristone’s availability. That conflicted with Judge Kacsmaryk’s order, and that dispute may have had an impact on Justice Alito’s decision to block the Texas ruling temporarily.