Sanity prevails!

April 22, 2023

          In a 7-2 ruling, the Supreme Court stayed Judge Kacsmaryk’s ruling revoking the FDA’s approval of mifepristone. As a result, mifepristone will remain available until the Fifth Circuit and Supreme Court consider Judge Kacsmaryk’s ruling on the merits. That process will likely take two years.

          The Supreme Court’s order and Alito’s dissent are here: Danco Laboratories LLC v. Alliance for Hippocratic Medicine.

          In granting the stay, the Supreme Court pulled back from the precipice of chaos that would have been created by a nationwide ban on mifepristone. There was a palpable sigh of relief among court watchers and reproductive rights advocates that the Court did not accept the invitation to depart the realm of sanity. As Ian Millhiser tweeted,

The Supreme Court did not do the most hackish, credibility-destroying thing it could possibly do.

          Millhiser offers a more sober analysis in his article in Vox, The Supreme Court’s new abortion pill ruling, explained. Per Millhiser,

The plaintiffs’ arguments in this case are laughably weak. They ask the Court to defy longstanding legal principles establishing that judges may not second-guess the FDA’s scientific judgments about which drugs are safe enough to be prescribed in the United States. Moreover, no federal court has jurisdiction to even hear this case in the first place.

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That said, the Court’s decision to temporarily keep mifepristone legal is a hopeful sign that the justices will ultimately decide not to ban mifepristone. And there are other reasons to believe that a majority of the Court might reject this entirely meritless attack on abortion rights.

          Justice Alito continued his descent into terminal crankiness with a three-page diatribe that belittles the medical necessity of mifepristone and women’s rights to healthcare. Alito would have denied the stay because he believes that a several-month period of restrictions on mifepristone would not “likely [impose] irreparable harm.” Tell that to a woman suffering through a protracted and dangerous miscarriage.

          It is tough to make predictions—especially about the future. But the fact that seven justices refused to allow Kacsmaryk’s ruling to remain in effect bodes well for the ultimate decision on the merits in favor of reproductive liberty.

          That is a good place to come to rest before the weekend. Sanity prevailed (for once), perhaps because the Court realized Dobbs inflicted irremediable damage to its legitimacy.

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          Have a good weekend, everyone! Talk to you on Monday!