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.”
