Tonight’s order doesn’t mean much, but it does mean that mifepristone is still legal, for now.
Justice Samuel Alito handed down a brief order Friday that temporarily hits pause on a high-profile lawsuit seeking to ban mifepristone, a drug used in more than half of all abortions in the United States. The most immediate upshot of this order is that mifepristone remains legal and fully available — for now.
Alito’s order, known as an administrative stay, does not necessarily mean that the very conservative Supreme Court will resist the temptation to ban mifepristone. Appellate courts often issue such administrative stays in order to buy themselves time to fully consider the case, without being forced to rush because of an arbitrary deadline.
Alito’s order remains in effect through Wednesday. The order was issued by Alito acting alone through a process that allows a single justice to temporarily halt decisions handed down by federal appeals courts. Alito is the justice assigned to review such cases arising out of the United States Court of Appeals for the Fifth Circuit.
In this case, known as FDA v. Alliance for Hippocratic Medicine, a longtime Christian right activist, and now Trump-appointed judge, named Matthew Kacsmaryk ordered the Food and Drug Administration 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 on Saturday unless a higher court intervened. On Thursday, a federal appeals court stayed Kacsmaryk’s full ban of mifepristone, but left in place other restrictions that would have severely curtailed access to the drug on the same timeline, unless the Supreme Court intervened.
The administrative stay effectively eliminates this deadline, giving the justices until next Wednesday to decide what to do with this case.
If the Supreme Court, which is dominated by Republican appointees, ultimately decides not to block the lower court orders attacking mifepristone, it will have many of the same effects as if Kacsmaryk’s original order had taken full effect, according to both the Justice Department and Danco Laboratories, the primary manufacturer of mifepristone.
A few days after Kacsmaryk attempted to ban mifepristone nationwide, the far-right US Court of Appeals for the Fifth Circuit effectively modified his order to allow mifepristone to be marketed in the United States — but only under the rules that existed before the FDA made several changes to how mifepristone may be prescribed, changes it began to hand down in 2016.
Both Kacsmaryk’s decision and the Fifth Circuit’s are egregiously wrong. They defy longstanding legal principles establishing that judges may not second-guess the FDA’s scientific judgments. And neither court even had jurisdiction to hear this case.
As a practical matter, Danco explained to the justices in its request to stay the appeals court’s decision, the Fifth Circuit’s order functions no differently than a ban on marketing mifepristone within the United States. That’s because, in order to market the drug under the old pre-2016 rules, Danco must “revise product labels, packaging, and promotional materials; recertify providers; and amend its supplier- and distributor-contracts and policies” to comply with the old rules.
Worse, before Danco can do any of this, it must seek approval for these changes from the FDA, a process that “typically takes months.” Thus, if the Fifth Circuit’s decision takes effect, it will be illegal for Danco to market the drug at least until it and the FDA can jump through all these hoops.
In any event, Alito’s order delays a reckoning on this high-stakes lawsuit, but it does not put such a reckoning off forever. The Supreme Court still must decide whether to hand down a decision that effectively bans mifepristone after this medication has been widely available for nearly a quarter of a century.