Why the Supreme Court Halted the Plot to Ban the Abortion Pill
Mark Joseph Stern Slate
Justice Brett Kavanaugh and Chief Justice John Roberts. (photo: Getty Images)
Mifepristone will remain legal in blue states, despite a lawless judicial effort to ban it.
As is often the case with shadow docket decisions, Friday’s order does not provide a reason for the Supreme Court’s action. It merely freezes Kacsmaryk’s ruling while the appeals process proceeds. But it is certainly a good omen for the ultimate outcome of this case. Even the two dissenters could not bring themselves to pretend that the lower courts got it right. (Technically, on the shadow docket, a justice can dissent without noting their vote, but it is rare.) Thomas didn’t even explain his vote, while Alito railed against the court’s emergency order to preserve access to medication abortion. He quoted recent opinions by Justices Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett that had cautioned against abuse of the shadow docket, and accused his fellow justices of hypocrisy for intervening here.
“I did not agree with these criticisms at the time,” Alito huffed, “but if they were warranted in the cases in which they were made, they are emphatically true here.” He further asserted that the court had no reason to step in, because the U.S. Court of Appeals for the 5th Circuit had “narrowed” Kacsmaryk’s order. If SCOTUS allowed that order to take effect, he wrote, it would merely reinstate mifepristone restrictions that have been lifted since 2016.
That’s not remotely true: The 5th Circuit’s decision would bar mifepristone’s manufacturer from distributing the drug for months; Alito wrote that the FDA could avoid these problems by exercising its “enforcement discretion”—creating massive regulatory uncertainty and raising the very real possibility that Kacsmaryk could hold both FDA officials and drugmakers in contempt. The 5th Circuit’s decision would have also removed the generic version from the market entirely, jeopardizing access in all 50 states. Practical implications aside, the move is also problematic for the separation in powers: If allowed to stand, it would’ve forced the FDA to violate federal law by pulling a drug from the market without following the mandatory procedures that Congress laid out. (Mifepristone is one of two drugs used in a medication abortion, along with misoprostol. While misoprostol can terminate a pregnancy by itself, mifepristone reduces the risk of side effects and complications.)
Alito then criticized castigated U.S. District Judge Thomas O. Rice, a Barack Obama appointee in Washington State, for issuing a competing injunction that preserved access to mifepristone in 17 states and the District of Columbia. Rice, he wrote, had gone beyond what the FDA requested by giving it relief that it “had never hinted it was contemplating.” And he castigated the Biden Administration for failing to swiftly appeal Rice’s order, charging it with “leverag[ing]” the injunction to implement “a desired policy while evading both necessary agency procedures and judicial review.”
Conspicuously absent from Alito’s dissent was even a single sentence trying to justify the actions of Kacsmaryk and the 5th Circuit. That is likely because the lower courts’ decisions were indefensible. This case, brought by far-right law firm Alliance Defending Freedom, asked the judiciary to contort a number of bedrock legal principles to overturn the FDA’s 23-year-old approval of mifepristone. The plaintiffs are a group of anti-abortion doctors who do not prescribe the medication. To establish standing, they claimed they might one day treat a patient injured by mifepristone, a totally conjectural future “injury” that may well never happen. To claim that the medication is dangerous, they rejected more than 100 scientific studies proving it’s safe and effective, and instead cited anonymous blog posts from an anti-abortion website. To seek relief, they asked for a nationwide decree overruling the FDA’s approval of the drug, removing it from the market even in states where abortion remains perfectly legal.
None of this made sense. A hypothetical future injury that rests on a series of conjectures does not establish standing. A judge cannot toss out real scientific evidence in favor of baseless propaganda. And no court can simply yank a drug from the market by overriding FDA approval —which is why no court has ever tried to do so until now. Even setting all that aside, this litigation came far, far too late to meet the six-year statute of limitations for such challenges. Kacsmaryk waved away all these problems in a stridently ideological opinion shot through with fervent anti-abortion rhetoric. The 5th Circuit attempted a similar trick. The Supreme Court declined to play along. It appears that even Justices Brett Kavanaugh, Neil Gorsuch, John Roberts, and Amy Coney Barrett would not entertain this outrageous manipulation of the federal judiciary to override democratic decision-making.
It is conceivable that SCOTUS’ conservative supermajority may one day entertain a different, more plausible challenge to medication abortion, perhaps by misreading the Comstock Act to transform the mailing of mifepristone into a criminal offense. But this case was an embarrassment from the start, and it gave the justices no credible excuse to side with the plaintiffs. A panel of judges from the 5th Circuit—one that’s different from the panel that upheld much of Kacsmaryk’s decision—will soon hear the case and issue a decision; if the plaintiffs prevail, the government will appeal their ruling to SCOTUS, and the justices will face this question again. All the while, thanks to Friday’s stay, the judicially imposed barriers to mifepristone will remain on ice, and blue state residents can still freely access the medication. This battle isn’t over, but the Supreme Court has now sent a very strong signal that it has little patience for this type of grievous abuse of the federal judiciary.
