WASHINGTON, DC – OCTOBER 07: United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022, in Washington, DC.
The U.S. Supreme Court opted to keep a widely-used abortion drug available nationwide, upholding a conservative appeals court’s block of a lower court judge’s injunction revoking the drug’s decades-old approval.
In a 7-2 ruling Friday evening, the Supreme Court granted the government’s request to stay U.S. District Judge Matthew J. Kacsmaryk’s April 7 order blocking the sale of mifepristone nationwide. Kacsmaryk, a Donald Trump appointee, withdrew the FDA’s approval of the drug, finding that the agency “exceeded its authority” in approving the drug in 2000.
“The applications for stays presented to Justice Alito and by him referred to the Court are granted,” the order said.
The stay will hold pending disposition of the matter in the U.S. Fifth Circuit Court of Appeals, which had blocked the part of Kacsmaryk’s ruling that would have withdrawn approval of mifepristone entirely but kept in place his decision to overturn a 2016 policy that made the drug more easily and widely available.
Justices Clarence Thomas and Samuel Alito dissented. Thomas did not give a reason for his position, but Alito submitted three pages on why he disagreed with the majority.
“Our granting of a stay of a lower-court decision is an equitable remedy,” Alito wrote. “It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of ‘leverag[ing]’ district court injunctions ‘as a basis’ for implementing a desired policy while evading both necessary agency procedures and judicial review.”
The lower court’s ruling in the case was not particularly surprising, as Kacsmaryk has long opposed abortion access and indicated during oral argument that he was inclined to grant the request of the plaintiffs — a coalition of doctors called the Alliance for Hippocratic Medicine — to revoke FDA approval of the drug.
The case has potentially wide-reaching consequences that reach well beyond abortion. As Law&Crime previously explained, the Fifth U.S. Circuit of the Court of Appeals found that the plaintiffs had standing to sue because treating patients who had suffered side effects of mifepristone, they claimed, was “emotionally taxing,” and at times required them to perform procedures — like abortions — that conflict with their personal beliefs. In the judges’ view, this amounted to an injury sufficient enough to support a lawsuit against the federal agency responsible for approving the use of mifepristone in the first place.
The government appealed, and on April 14, Justice Samuel Alito issued an administrative stay originally intended to last until Wednesday, April 19. On that day, however, Alito bought himself and his colleagues on the bench a little more time, giving the justices until midnight Friday to issue a ruling.
On the day Kacsmaryk issued his ruling, a federal judge in Washington issued an order in direct conflict: U.S. District Judge Thomas Rice, a Barack Obama appointee, found that the FDA could not pull mifepristone from the market, and directed the agency to keep it available in at least 17 states and the District of Columbia. Additionally, Kacsmaryk immediately stayed his ruling for seven days, at least temporarily maintaining mifepristone’s approved status while the appeals process got underway.
The case, Alliance Hippocratic Medicine v. FDA, is widely considered the most consequential matter relating to abortion rights before the Supreme Court since its June 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which rolled back decades of abortion access by overturning Roe v. Wade.
Read the Supreme Court’s order here.
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