Justice Samuel Alito handed down a short and confusing order about an abortion lawsuit on Wednesday, which briefly extends a different order he handed down last Friday.
The Friday order paused lower courts’ orders that severely restricted access to the abortion drug mifepristone until Wednesday, so that the justices could have time to consider whether to sign on to this attempt to ban the medication. The new order extends that pause by two days, until midnight on Friday, April 21.
The upshot of this new order is that mifepristone remains fully legal in states that do not ban abortion, at least until Alito’s new order expires.
It is unclear why the justices need another two days to ponder this case, which is known as FDA v. Alliance for Hippocratic Medicine, as the plaintiffs’ arguments in favor of banning mifepristone are wholly without merit. But this has been a maximally chaotic case over the past two weeks — and that confusion will now last at least two more days.
How we got here, explained as best we can
The plaintiffs in this case ask the Supreme Court to second-guess the Food and Drug Administration’s scientific judgment that mifepristone is safe to be marketed within the United States, something the Court is not allowed to do.
Additionally, no federal court has jurisdiction to hear this case. Before any federal court may hear any lawsuit challenging a federal policy, the plaintiffs must show they’ve been injured in some way by that policy — a requirement known as “standing.” Moreover, under the Supreme Court’s decision in Clapper v. Amnesty International (2013), the Hippocratic Medicine plaintiffs must show that they will be injured in the future unless access to mifepristone is blocked, and that this future injury is “certainly impending.”
But these plaintiffs do not raise an even remotely plausible claim that they have standing. Their primary argument is that, if mifepristone stays on the market, patients who were prescribed mifepristone by other doctors might experience complications, which might cause them to switch doctors and seek care from the plaintiff physicians. This then might cause the plaintiff doctors to divert their attention from other patients, or it might cause them to provide treatments to their new patients that they would prefer not to provide.
That is not the kind of “certainly impending” injury that is required under Clapper.
And yet, Matthew Kacsmaryk, the Trump-appointed judge in Texas who first heard this case, ordered the FDA on April 7 to withdraw its 23-year-old approval of mifepristone. Kacsmaryk stayed his order for just seven days, which means that it would have taken effect at 1 am ET last Saturday, unless a higher court intervened. On April 13, the United States Court of Appeals for the Fifth Circuit stayed Kacsmaryk’s full ban of mifepristone, but left in place other restrictions that would have severely curtailed access to the drug unless the Supreme Court intervened before Kacsmaryk’s original deadline.
Alito’s first order on Friday effectively extended this deadline until Wednesday, and Wednesday’s order added another two days to the tally.
Though it’s impossible to know how the Supreme Court will ultimately decide, there are several possible scenarios for what happens next.
Alito is the Court’s most reliable Republican partisan, so the fact that he extended his stay rather than allowing it to expire at midnight suggests that he may lack five votes to ban mifepristone or otherwise restrict its use. But even if the Court does intend to repudiate Kacsmaryk’s decision and restore the FDA’s authority over drug approvals, the case could potentially drag on for several months.
The Court could issue a “summary reversal,” an order that ends this lawsuit altogether without additional briefing or oral arguments. Alternatively, it could issue a “stay pending appeal,” which would block the lower courts’ decisions while the case is fully litigated in the Fifth Circuit and, if necessary, in the Supreme Court. (Although the Fifth Circuit already heard an emergency request to stay Kacsmaryk’s order, it has not yet heard a full appeal of this case, which would take place after additional briefing and oral argument.) It could also issue a stay and fast-track the litigation onto its own docket, bypassing the normal process in lower courts.
And there’s still a possibility that the Court will deny a stay and allow the Fifth Circuit’s restrictions on mifepristone to take effect. If that happens, the FDA says it will need to complete a months-long process before mifepristone could be marketed again in the United States, in order to comply with the Fifth Circuit’s order. And that’s assuming that the courts do not take additional steps to ban the drug.
In any event, it now appears that we will learn whether the Supreme Court will hand down a completely lawless order — an order blocking access to a drug that has been widely available in the United States for 23 years — on Friday.