The Supreme Court voted to keep extreme restrictions on a commonly used abortion pill from taking effect while litigation in the case continues. Justices Clarence Thomas and Samuel Alito dissented from the stay.
The restrictions came from Donald Trump-appointed Judge Matthew Kacsmaryk, a longtime anti-abortion activist in Texas who, on April 7, issued an unprecedented and dubiously reasoned ruling suspending the Food and Drug Administration’s 2000 approval of the abortion pill mifepristone.
A 5th Circuit Court of Appeals panel, with two Trump appointees in the majority, then narrowed his ruling on dubious grounds of its own, leaving intact restrictions from Kacsmaryk’s ruling that would, among other things, bar mifepristone access by mail. But Kacsmaryk’s narrowed ruling still hadn’t gone into effect, while litigation played out over whether it can while the merits are being challenged. The 5th Circuit is set to hear oral arguments in the case on May 17.
While Thomas simply noted his dissent Friday, Alito wrote an opinion in which he downplayed the harm that would come from letting the restrictions take effect, denying that chaos would occur and even suggesting that the government might not comply with an adverse ruling. The justice who authored the Dobbs decision overturning Roe v. Wade wrote that “the 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.”
The Justice Department warned in a legal filing to the Supreme Court that letting the restrictions take effect “would scramble the regulatory regime governing” mifepristone, which “has been used by more than five million American women over the last two decades.” Danco Laboratories, which manufactures name brand mifepristone Mifeprex and is also challenging the restrictions, called Kacsmaryk’s order a “first-in-a-century judicial second-guessing of FDA’s scientific judgment” that “prompted immediate chaos and nationwide confusion.”
