After a majority on the Supreme Court halted a sweeping lower court ruling threatening access to a common abortion drug, Justice Samuel Alito dissented from the pack, downplaying claims of “regulatory chaos” that would ensue over conflicting lower court decisions.
The majority on the high court removed the threat of any restrictions on the drug mifepristone for now after the Biden administration sued against a Texas district judge who ruled to overturn the Food and Drug Administration‘s approval of the pill. Alito and Justice Clarence Thomas, two of the most conservative justices, dissented from the majority, with Alito writing four pages for why he would have allowed partial restrictions on the drug.
DIVIDED SUPREME COURT REMOVES RESTRICTIONS ON ABORTION PILL ACCESS
Alito disagreed that “chaos” would ensue from a conflict between two federal court rulings, one in which a Texas judge placed an injunction on mifepristone nationwide and another from a Washington judge who ordered the FDA to maintain the status quo. He argued that even if there were a conflict, “that should not be given any weight.”
“The applicants claim that regulatory ‘chaos’ would occur due to an alleged conflict between the relief awarded in these cases and the relief provided by a decision of the United States District Court for the Eastern District of Washington,” Alito wrote.
Justice Department Solicitor General Elizabeth Prelogar wrote in a previous filing on behalf of the FDA that their appeal concerned “unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone.”
But Alito took aim with the Washington judge who blocked the FDA from altering its current rules over mifepristone, saying that was “something that the FDA had never hinted it was contemplating.” That decision came just shortly after the Texas court ruling on April 7 and applied to 17 states, including the District of Columbia.
“The FDA did not appeal that appealable order, and when seven states that might take such an appeal asked to intervene, the FDA opposed their request. This series of events laid the foundation for the Government’s regulatory ‘chaos’ argument,” Alito added.
Alito, the author of the landmark decision last summer overturning Roe v. Wade, initially issued a temporary stay on the case until Wednesday but extended it until Friday, blocking any changes for access to mifepristone.
While Thomas dissented, he did not offer any reason for his decision.
The Alliance Defending Freedom, which represented doctors against abortion that challenged the agency’s drug approval, said the majority’s decision is “common practice.”
“Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts,” ADF senior counsel Erik Baptist wrote in a statement. “We look forward to a final outcome in this case that will hold the FDA accountable.”
Oral arguments over the government’s appeal have been scheduled for May 17. Access to the drug will remain unchanged until a three-judge panel on the U.S. Court of Appeals for the 5th Circuit makes its ruling, though a party could again appeal to the nation’s highest court.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Whichever party loses in the appeals court can take the case back to the Supreme Court on the merits, meaning a more expansive consideration of the claims parties make for and against the drug’s approval.
The Supreme Court could then decline to take the case or give it a full review.
