The Supreme Court handed down a brief order on Friday in Danco Laboratories v. Alliance for Hippocratic Medicine, a lawsuit asking the federal judiciary to effectively ban mifepristone, a drug used in more than half of all abortions in the United States.
The most immediate impact of the Court’s new order is that the justices voted to stay lower court decisions that would have cut off access to mifepristone, at least for the time being. That means that mifepristone remains available, and that patients who live in states where abortion is legal may still obtain the drug in the same way they would have obtained it if this lawsuit has never been filed.
The Court did not disclose how each justice voted, but only two justices, Clarence Thomas and Samuel Alito, publicly noted their dissents.
This stay, however, is only temporary. The case will still need to be litigated in the conservative United States Court of Appeals for the Fifth Circuit, and it may need to be heard the Supreme Court again. Nevertheless, Friday’s order means that mifepristone will remain available until the last court to hear this case issues its final decision.
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.
As attorney Adam Unikowsky, a former law clerk to Justice Antonin Scalia, has written, “if the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court.”
But this Court’s GOP-appointed majority has a history of manipulating longstanding legal principles in order to achieve anti-abortion results. Most notably, in Whole Woman’s Health v. Jackson (2021), the Supreme Court announced a new legal rule…
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