Even for a Supreme Court justice whose opinions and public comments have often stirred controversy, it was a remarkable assertion. As Justice Samuel A. Alito Jr. was listing his reasons Friday for dissenting from the court’s ruling in favor of continued access, for now, to the abortion pill mifepristone, among them was the idea that the Biden administration might simply disregard the ruling anyway.
“[T]he Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” Alito wrote.
And it wasn’t just an aside; it was the thing Alito cited immediately before writing, “For these reasons, I would deny the stay applications.”
Alito, unfortunately, didn’t cite any evidence to back up this claim. But it appears to have to do with a weeks-old back-and-forth over calls by some Democrats and even a Republican congresswoman to ignore or not enforce rulings against the abortion pill.
After a federal judge in Texas suspended the Food and Drug Administration’s approval of mifepristone and a judge in Washington state issued a contradictory ruling on the same day this month, there was confusion about what would happen next.
Some left-leaning legal experts and Democrats, including Sen. Ron Wyden (D-Ore.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), said the Biden administration should ignore the ruling in Texas or, less drastically, simply not enforce it by citing its discretion in such cases. They would soon be joined by none other than Rep. Nancy Mace (R-S.C.), who said, “That is the FDA’s decision on the efficacy, safety and usage of that particular drug. … I agree with ignoring it at this point.”
On April 9, this idea was presented to Health and Human Services Secretary Xavier Becerra during a CNN interview. He was noncommittal and said he didn’t want to get into such “speculation,” while eventually telling host Dana Bash: “Everything is on the table.”
Bash: But are you taking it off the table that you will recommend the FDA ignore a ban?Becerra: Everything is on the table. The president said that way back when the Dobbs decision came out. Every option is on the table.
Later that day, though, a Department of Health and Human Services spokeswoman sought to clarify Becerra’s comments.
“People are rightly frustrated about this decision — but as dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision,” spokeswoman Kamara Jones wrote on Twitter.
People are rightly frustrated about this decision — but as dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision.
— Kamara Jones (Acting ASPA) (@HHS_Spox) April 9, 2023
(The first comment about precedent refers to the fact that this appears to have been the first time a court has moved to remove a drug’s approval despite the FDA’s disagreeing.)
The White House would soon echo that talking point. Press secretary Karine Jean-Pierre was asked repeatedly about this on April 10, and she again emphasized how dangerous it would be to simply disregard such a ruling.
“Look, we are going to always follow the law. Always,” Jean-Pierre said. She added: “As a dangerous precedent is set for court[s] to set aside FDA’s expert judgment regarding a drug[’s] safety and efficiency, it would also set a dangerous precedent for this administration to disregard — right? — a binding decision.”
If we’re parsing that very closely, saying it would be a dangerous precedent doesn’t necessarily mean you won’t do it. Both comments also cast the initial ruling itself as dangerous, so it would be choosing between two dangerous precedents.
At the same time, Jean-Pierre said the White House was “going to always follow the law.” Multiple media outlets wrote this up as effectively dismissing the possibility. And an anonymous White House spokesperson was more definitive in an interview with Talking Points Memo, saying when asked whether there were plans to ignore the ruling: “No.”
Both HHS and the on-the-record comments from the White House didn’t say it as directly, while clearly seeking to downplay the possibility. Perhaps they saw some way to work around the edges with the FDA’s enforcement discretion (rather than outright “ignoring” a ruling), or perhaps they didn’t want to be seen as publicly rebuking prominent Democrats.
Beyond that, though, is the fact that Alito cast this as a reason not to temporarily block the ruling in Texas.
He was effectively arguing that the court shouldn’t step in and temporarily preserve access, as the Biden administration requested, because the FDA has used enforcement discretion on mifepristone before and because it might just ignore the ruling altogether.
Not granting the stay “would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue,” Alito wrote, noting that the court is set to issue a fuller ruling in the case soon.
The idea is that Danco, the pill’s manufacturer, didn’t prove it would suffer irreparable harm in part because the Biden administration might well just allow the pill to be used anyway.
There’s no question that talking about ignoring or working around a court ruling is getting into some dicey territory when it comes to the increasing political fights over the judiciary — as both HHS and the White House acknowledged. But relying on what were pretty noncommittal and skeptical statements about the subject from the actual decision-makers, without detailing the why, shouldn’t escape notice either.