2 Supreme Court Justices Dissent in Major Abortion Case

The Supreme Court held a special sitting on Sept. 30, 2022, for the formal investiture ceremony of Associate Justice Ketanji Brown Jackson. Collection of the Supreme Court of the United States/Getty Images

A majority of Supreme Court justices halted a lower court’s order on April 21 that blocked access to an abortion drug, but Justices Samuel Alito and Clarence Thomas dissented.

Alito wrote a four-page dissent and explained why he would allow partial restrictions on the drug mifepristone, after the Biden administration appealed a ruling against a Texas district judge who ruled to overturn the Food and Drug Administration’s (FDA’s) approval of the pill.

But he disagreed that chaos would be triggered by a conflict between two federal court orders. A Texas judge put an injunction on the FDA-backed drug nationwide, and a judge in Washington state ordered the FDA to not make any changes that would restrict access to the abortion drug.

“At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim,” Alito wrote (pdf), noting that the U.S. 5th Circuit Court of Appeals fast-tracked hearing the arguments of the case. “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.”

Because the “appeal has been put on a fast track, with oral argument scheduled to take place in 26 days,” he noted that “there is reason to believe that they would get the relief they now seek—from either the Court of Appeals or this Court—in the near future if their arguments on the merits are persuasive.”

His reference to “chaos” was in response to Justice Department Solicitor General Elizabeth Prelogar’s previous petition to the high court. Writing on behalf of the FDA, Prelogar said the government’s appeal dealt with “unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone.”

“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,” Alito wrote. “This series of events laid the foundation for the Government’s regulatory ‘chaos’ argument.”

Supreme Court Justice Samuel Alito poses in Washington on April 23, 2021. Erin Schaff/Pool via Reuters

The George W. Bush-appointed justice further stipulated that “it is not clear that there actually is a conflict because the relief in these cases is a stay, not an injunction, but even if there is a conflict, that should not be given any weight.”

The Supreme Court’s decision was published unsigned and didn’t explain why it decided to grant the federal government’s request. The votes of the justices other than Alito and Thomas, who “would deny the applications for stays,” weren’t published.

Mifepristone was approved by the FDA for the termination of a pregnancy until the seventh week of gestation. In 2016, it was approved to be used up to 10 weeks into gestation.

The Texas judge who blocked the FDA’s approval of the drug, District Judge Matthew Kacsmaryk, a Trump appointee, sided with a pro-life group in an April 7 ruling. But a conflicting ruling, made by District Judge Thomas O. Rice of Washington state, an Obama appointee, ordered the FDA to keep mifepristone available in 17 states.

The 5th Circuit will hear arguments over the federal government’s appeal on May 17. People will still have access to mifepristone until the appeals court makes its decision, although that ruling could itself be appealed to the Supreme Court.

Alito, who was the author of the landmark decision last summer to overturn the 1972 pro-abortion Roe v. Wade ruling, first issued a temporary stay on the case until April 19. That was extended until April 21.

The group that petitioned Kacsmaryk, Alliance Defending Freedom, represented doctors who are against abortion and sought to strike down the FDA’s approval of the drug.

“Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts,” the group’s senior counsel, Erik Baptist, said in a statement last week. “We look forward to a final outcome in this case that will hold the FDA accountable.”

Pro-abortion groups praised the Supreme Court’s decision last week, but they noted that the case is still being appealed.

“We’re not out of the woods yet,” Center for Reproductive Rights President Nancy Northup told Reuters.