With only two noted dissents, the Supreme Court on Friday evening cleared the way for the abortion drug mifepristone to remain available throughout the country but settled nothing about its legality in the face of broad new challenges.
In a one-paragraph order, containing no explanation, the Court put on hold an April 7 decision by a federal judge in Texas that would have taken the drug off the market.
The order allows a federal appeals court based in New Orleans to go ahead with a review of the Texas judge’s order. That court has scheduled a hearing for May 17, and is pursuing the case on an expedited schedule.
The Justices’ order was unsigned, but only two Justices – Samuel A. Alito, Jr., and Clarence Thomas – objected.
Thomas said simply that he would not have issued the order but did not explain. Alito dissented in a four-page opinion criticizing the Food and Drug Administration, a lower court judge who had ruled differently than the Texas jurist, and some of his colleagues for recent comments in a running internal debate over how the Court handles emergency orders without full review or explanations.
Alito insisted, though, that he was not taking any position on the legality of mifepristone, which is used with another drug, misoprostol, to bring about the end of a pregnancy. This combination is used in more than half of the abortions performed across the country and has been ruled safe and effective repeatedly by the FDA.
The Friday evening order left some uncertainty, because it said nothing at all about a temporary decision by the New Orleans appeals court that would have imposed significant limits on access to mifepristone even while allowing it to remain on the market.
The appeals court order would have temporarily barred receiving the drug by mail and temporarily barred women from taking the drug at home to begin an abortion.
Alito seemed to suggest that the restrictions imposed by the appeals court might still be in effect. He commented that the FDA and the maker of the brand-name version of mifepristone had exaggerated the harm and the chaos they predicted, and noted that the appeals court’s limits simply restore the situation that existed when mifepristone was first approved by FDA 23 years ago. However, FDA over the past seven years has lifted almost all of those limitations.
The appeals court’s order was technically a modification of the Texas judge’s flat ban, so it seemed to have no independent status. University of Texas law professor Steve Vladeck, one of the country’s leading experts on court procedures, said Friday that the Justices’ order means that the appeals court’s action has no effect while the case moved forward there.
The Supreme Court’s action Friday evening allows the Justices to avoid having to do anything further with the mifepristone controversy, freeing them to work on scores of other cases as they begin to drive toward finishing the current term in late June or early July. The controversy could return to the Justices, however, after the appeals court rules in coming weeks.
The dispute over the abortion drug is the most controversial abortion question the Justices have faced in the ten months since their decision last June ending the constitutional right to abortion. That decision has had wide political impact and has led many conservative-dominated state legislatures to move to outlaw abortion altogether or impose greater restrictions on the procedure. The decision has also energized anti-abortion forces to pursue more challenges in court – as in the dispute over mifepristone.