2 Supreme Court Justices Dissent in Major Abortion Case

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A majority of Supreme Court justices halted a lower courtโ€™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 Administrationโ€™s (FDAโ€™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.

โ€œAt 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,โ€ Alito wrote (pdf), noting that the U.S. 5th Circuit Court of Appeals fast-tracked hearing the arguments of the case. โ€œThe applicants claim that regulatory โ€˜chaosโ€™ 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.โ€

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

His reference to โ€œchaosโ€ was in response to Justice Department Solicitor General Elizabeth Prelogarโ€™s previous petition to the high court. Writing on behalf of the FDA, Prelogar said the governmentโ€™s appeal dealt with โ€œunprecedented lower court orders countermanding FDAโ€™s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone.โ€

โ€œThe 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,โ€ Alito wrote. โ€œThis series of events laid the foundation for the Governmentโ€™s regulatory โ€˜chaosโ€™ argument.โ€

Byย Jack Phillips

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