Access to abortion medication is safe — for now. The Supreme Court’s vote to block a lower-court ruling that would have dramatically curtailed the use of mifepristone offers significant cause for relief. On a court with a conservative supermajority that hasn’t been shy about aggressively deploying its muscle, this is about as good as it gets.
Notably, only two justices — Clarence Thomas and Samuel A. Alito Jr. — recorded dissents from the decision to leave the existing rules governing mifepristone in place while the issue makes its way through the lower courts. The majority, as is customary at this stage, did not explain its reasoning, but it is significant — and, under the circumstances, comforting — that none of the three Trump appointees noted disagreement.
The reasons for relief are both practical and legal. A federal district court judge in Texas took the unprecedented step of invalidating the Food and Drug Administration’s 23-year-old approval of mifepristone, and the decision by U.S. Court of Appeals for the 5th Circuit to allow much of that order to remain in effect while the case is on appeal wasn’t much better. It would have disrupted and complicated access to mifepristone, which is uncertain enough in the aftermath of the court’s overruling of Roe v. Wade last year.
Even after labels are rewritten to comply with the new, 5th Circuit-ordered regime, a process that could take months, women would only be able to obtain mifepristone for abortions up to seven weeks, not the 10 weeks currently approved by the FDA. Only doctors would be allowed to prescribe mifepristone. Women would have had to make not one but three separate visits to health facilities; the medication would no longer be available by mail. The approved dosage of mifepristone would have been triple what is currently used. The generic version, approved in 2019, would have lost its approval.
This would, FDA Deputy Commissioner Janet Woodcock warned the court, “create significant chaos for patients, prescribers, and the health care delivery system.”
The legal ramifications of leaving the appeals court ruling in place while the case proceeds would have been equally alarming. Chief among them: There is no honest way, consistent with the Supreme Court’s own precedents, that the antiabortion doctors challenging the FDA’s approval of mifepristone have standing to do so. District Judge Matthew J. Kacsmaryk, and then the two Trump-appointed appeals court judges, found standing only by ignoring cases and distorting the record. For the court to have left such judicial activism undisturbed would have been astonishing.
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In this case, the arguments by the antiabortion doctors that they were somehow harmed by the FDA’s approval of a medication that they do not themselves prescribe were laughable. These included: that a small number of patients seen by other providers would experience serious side effects, and that they would somehow end up seeking care from the antiabortion doctors, and that they would thereby burden their medical practices or require them to provide emergency abortions against their consciences.
“To describe that theory is to refute it,” U.S. Solicitor General Elizabeth B. Prelogar told the court. And that about sums it up.
Standing is a fundamentally conservative doctrine, designed to ensure the separation of powers and to keep judges in their proper lanes. The law of standing requires much more than a “speculative chain of possibilities.” The “future injury” must be “certainly impending.” You know who said that? Alito, in 2013.
Alito, tellingly, didn’t grapple with the standing question at all. It was a principal focus of the lower-court rulings and of the briefing by both sides, but went unmentioned in his brief dissent. Rather, writing only for himself, Alito discounted the impact of leaving the 5th Circuit’s order in place. He asserted that the government and the manufacturer of mifepristone “have not shown that they are likely to suffer irreparable harm in the interim” and went on to cite “legitimate doubts that [the government] would even obey an unfavorable order in these cases.”
Alito also said the case has been put on a fast track in the appeals court. The medication would remain available under the rules in place before restrictions were eased in 2016. As to the labeling, why worry? Everyone knows the FDA would never go after the manufacturer.
Easy for Alito to discount “the threat of any real harm.” I guess he knows better than Woodcock. And he’s not a pregnant woman forced to make multiple (and unnecessary) visits to obtain a lawful drug.
But relief for the moment does not counsel complacency: This case isn’t over yet. Friday’s action means that the status quo — broad access to mifepristone — will remain in place as the 5th Circuit, the most conservative in the country, considers the challenge.
That might be done by a different panel than the one that considered the request to stay Kacsmaryk’s order, but the chances are good on the conservative-dominated appeals court that it will concoct some basis for standing and proceed, as did the original panel, to second-guess the FDA on the merits and perhaps even to declare that the 150-year-old Comstock Act prohibits the mailing of abortion medication.
Friday’s action suggests that many if not most conservative justices aren’t eager to plunge back into the abortion maelstrom. They might be chastened by the public reaction to — and the political fallout from — their ruling in Dobbs v. Jackson Women’s Health Organization.
This case is headed back to the high court, sooner or later, but the stay remains in place for the duration. The clear outcome and the seemingly lopsided vote offer a rare moment of good news from the justices.