The Biden administration’s regulations that allow abortion pills to be sent through the mail have been reinstated for five days. A Supreme Court administrative stay has stopped recent court orders in the matter so the justices could consider legal arguments from both sides.
In 2000, during the Clinton administration, FDA approved mifepristone as a drug that causes abortion. In 2016 and 2019, the FDA removed certain safeguards which limited the use of the so-called “abortion pill”.
In 2021, the FDA under the Biden administration removed a major limitation, announcing that it would create a program allowing abortion pills to be sent via mail. This led a group named the Alliance for Hippocratic Medicine, to file a lawsuit in federal court. In 2023, the mail option was implemented.
Judge Matthew Kacsmaryk of the U.S. District Court, Northern District of Texas, handed down this month a 67-page decision that the FDA decisions were illegal according to federal law. He issued a nationwide order blocking the abortion pill.
A few days later, the U.S. Court of Appeals Fifth Circuit granted a partial stay to the Biden Justice Department. The 42-page court opinion put on hold temporarily the part of the decision regarding the 2000 FDA decision, because it may be past the deadline to bring legal challenges. However, it added that it was “close” and the court could go in the opposite direction if it received additional legal arguments. The appellate court, however, rejected any stay from 2016 onwards and affirmed the trial court’s order.
All those items were in favor of a stay until the appeal was heard. To make a decision, the appeals court must now receive a full legal briefing on these issues and hear oral arguments.
The Justice Department requested that the Supreme Court grant a stay on the decisions of lower courts.
Justice Samuel Alito oversees the Fifth Circuit. On Friday, he issued a five-day administrative stay while the Alliance for Hippocratic Medicine filed its papers opposing the stay. He ordered that group to file by Tuesday noon.
Alito is likely to refer the two sets of papers back to the eight other justices for them to decide whether they want to intervene or let the Fifth Circuit appeal proceed as usual.
A stay of proceedings is not a reflection of the merits or legality of the case. A Supreme Court Justice can issue an administrative stay to maintain the status quo as the court receives arguments from both parties.
The applications are Danco Laboratories v. Alliance for Hippocratic Medicine, No. 22A901, and FDA v. Alliance for Hippocratic Medicine, No. 22A902 in the Supreme Court of the United States.
