The Supreme Court that erased a constitutional right to abortion 10 months ago took a breath on Friday.
In a brief order, over only two publicly dissenting justices, the majority preserved the current law and present-day access to medication abortion. That is the predominant method, in contrast to surgical abortion, used by women in the US seeking to end a pregnancy in the early stages.
The majority separated itself from individual lower court judges – all appointees of former President Donald Trump – who this month had demonstrated a zeal to further reduce access to abortion across the country.
The Supreme Court’s order Friday night reflected a willingness to step back – at least for now – in the dispute that tests the US Food and Drug Administration’s expertise, as well as the premise of the court’s own decision last June that individual states may make their own determinations on the legality of abortion.
Clarence Thomas and Samuel Alito were the only justices who noted their dissent, and Alito, alone, explained his view.
Alito, the author of last June’s decision reversing the 1973 Roe v. Wade, derided the Biden administration’s warnings about the regulatory chaos that would arise if the abortion drug was suddenly restricted.
He also claimed that “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order,” an assertion that was outright contrary to Biden administration officials’ comments that they would follow court orders even as they continued to appeal.
No other justice signed onto Alito’s four-page statement.
Last June, the Alito majority emphasized the role of individual states in the abortion rights dilemma. “It is time to heed the Constitution and return the issue of abortion to the people’s representatives,” Alito had written in Dobbs v. Jackson Women’s Health Organization.
Justice Brett Kavanaugh wrote a separate concurring statement that insisted judges would no longer be engaged in the “difficult moral and policy questions” of abortion.
“To be clear, then,” Kavanaugh had added, “the Court’s decision today does not outlaw abortion throughout the United States.”
But without the mifepristone drug option at the center of the new controversy, access to abortion would be significantly undermined in wide swaths of the US.
While states regulate abortion, and a majority continue to make it legal, the federal FDA has the authority for ensuring the safety and effectiveness of the medication that is used to end a pregnancy.
The justices on Friday granted a request by the Biden administration and drug manufacturer Danco to suspend the effect of the lower court rulings that sought to overturn or cut back FDA’s approval for mifepristone, the first pill of a two-drug abortion protocol. FDA authorization of mifepristone traces back to 2000, and since the high court reversed Roe v. Wade last June and some states began instituting bans on the procedure, the drug’s availability has become even more crucial for women’s ability to terminate a pregnancy.
The three other justices who had joined Alito and Thomas in reversing Roe last summer – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were silent on Friday.
At least one of them would have been needed to constitute the requisite majority of five justices, if combined with the three liberals who have supported abortion rights (Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson) and with Chief Justice John Roberts. Last summer, Roberts tried to persuade his fellow conservatives to hold off on reversing Roe even as he agreed with their move to uphold a groundbreaking Mississippi state ban on abortions at 15-weeks.
Friday’s action in the new case may represent a measure of success for Roberts in the divisive area of reproductive rights.
The chief justice had failed to bring together the right and left sides of the court in Dobbs, writing then, “Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. … I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after 15 weeks.”
Roberts on Friday declined to record his vote or views publicly, but he likely favored the slower approach to litigation that constitutes a major attack on the FDA’s approval process for all drugs. Many polls have shown the court’s overall public approval plunging as the conservative majority has rolled back decades-old precedent.
The only justice who put his full sentiment down on paper was Alito, who had controlled the sweeping decision overturning nearly a half century of women’s privacy rights related to pregnancy.
He spurned the Biden administration’s arguments about the chaos and harm that would arise if the use of mifepristone were curtailed. The combined lower court orders in the case would have prevented the drug from being prescribed after seven weeks of pregnancy. It now extends to 10 weeks of pregnancy. The lower court action also would have reinstituted a requirement that women pick up the drug in-person, rather than obtain by mail after consulting with health care providers. Further, new restrictions on dosage would have been put in place and a generic drug that now accounts for most of the market would have been eliminated.
Alito minimized those possible changes, stressing that mifepristone would remain the market. However, the FDA had said that if certain restrictions were imposed, mifepristone would be rendered mislabeled and misbranded – a situation that would take months to remedy.
US district court Judge Matthew Kacsmaryk, an enduring opponent of abortion rights, had handled the first phase of the lawsuit and laid bare his policy and moral preferences. He shunned the widely used term “fetus,” which the justices themselves have invoked, and instead referred to the “unborn human” and “unborn child.”
Kacsmaryk had been specifically sought out by anti-abortion physicians and medical groups who filed the lawsuit in his Amarillo, Texas, district.
In his April 7 decision invalidating FDA approval of mifepristone, he rejected the agency’s 23-year determination that the pill was safe and effective. “The Court,” Kacsmaryk wrote of his findings, “does not second-guess FDA’s decision-making lightly. But here, FDA acquiesced in its legitimate safety concerns – in violation of its statutory duty – based on plainly unsound reasoning and studies that did not support its conclusions.”
The FDA, physicians and drug makers widely disparaged Kacsmaryk’s usurping of the agency’s scientific expertise.
A panel of the US Court of Appeals for the 5th Circuit upheld significant portions of Kacsmaryk’s ruling, by a 2-1 vote. Most importantly, it agreed that anti-abortion physicians and medical groups could challenge the drug even though they do not prescribe it, brushing aside the Biden administration’s arguments that the challengers lacked legal “standing” to sue.
The 5th Circuit has set a May 17 date for a full airing of the lawsuit against the FDA, and that proceeding is on schedule. The difference now is that full FDA approval and regulations since 2016 that enhanced access to the drug will remain in place during the litigation.
The high court’s order, siding with the FDA at this preliminary point, may newly influence how lower court judges regard the litigation and shift the emphasis in this new chapter of America’s ongoing abortion wars.