The Supreme Court, at its Friday Morning Conference, yesterday granted a full and indefinite stay of a lower-court order barring further distribution of mifepristone, the most-often-used abortifacient.
Mifepristone still available
As of this moment, mifepristone remains available for distribution by mail, per current FDA rules, throughout the land. The Supreme Court took up two applications for stay at its Friday Morning Conference yesterday (April 21). Danco Laboratories, the current distributor, filed one; the FDA itself filed the other. Alliance for Hippocratic Medicine et al. v. Food and Drug Administration et al. v. Danco Laboratories, case no. 2:22-cv-223.
The order hasn’t yet made it into a PDF Miscellaneous Order and will presumably be in the nextOrder List. However, a Docket Search yielded this text:
Application (22A901) granted by the Court. The application for stay presented to Justice Alito and by him referred to the Court is granted. The April 7, 2023 order of the United States District Court for the Northern District of Texas, case No. 2:22-cv-223, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Thomas would deny the application for stay. Justice Alito dissents. (Detached Opinion)
Again, Justice Alito’s opinion should be available on Monday morning.
This Court has many friends
SCOTUS received no fewer than twenty-six friend-of-the-court briefs on this case. The various parties fell out predictably on the side of the law conducive to their agendae. For instance, 253 Members of Congress – all Democrats – filed a brief saying that taking mifepristone off the market would disrupt “science-based” decision making. On the other hand, conservative organizations took exception to the Office of Legal Counsel’s opinion that the Comstock Act didn’t matter. The Constock Act, still on the books, prevents mailing abortifacients directly to “patients.”
Danco Laboratories filed a reply. They essentially denied every finding Judge Matthew Kacsmaryk made in his original order.
Alliance for Hippocratic Medicine, with help from Alliance Defending Freedom, sued the FDA to stop distribution of mifepristone. 22 Republican attorneys general and 67 Republicans in Congress supported the suit. Judge Kacsmaryk granted an emergency “stay of approval” on April 7. (See also CNAV’s commentary on the judge’s order and findings.)
Immediately the FDA and Danco Laboratories, acting as an intervenor, appealed to the Fifth Circuit Court of Appeals. That Court made mifepristone available again – but only under the pre-2016 FDA rules. This didn’t satisfy the FDA or Danco Laboratories, which both applied for a complete stay of the District Court order. Justice Alito granted that stay temporarily, extending it once to give the Supreme Court time to “Conference” it.
The Supreme Court will now await the judgment of the Fifth Circuit Court of Appeals. After that, the loser will almost certainly apply for review.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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