Alito: Doubtful WH Would Obey Unfavorable Abortion Pill Ruling

Justice Samuel Alito in a dissent from the Supreme Court’s order pausing mifepristone restrictions from taking effect expressed “legitimate doubts” that the Biden administration would have obeyed the court decision had it been unfavorable.

“Here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” Alito wrote. 

Alito, the author of last year’s decision overturning Roe v. Wade, and Clarence Thomas voted to allow restrictions to take effect. No other justices commented on the court’s one-paragraph order, and the court did not release a full vote breakdown.

The abortion opponents filed suit in Texas in November, asserting that the FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed.

The drug has been approved for use in the U.S. since 2000 and more than 5 million people have used it. Mifepristone is used in combination with a second drug, misoprostol, in more than half of all abortions in the U.S.

Alito, the author of last year’s decision overturning Roe v. Wade, and Clarence Thomas, voted to allow restrictions to take effect. No other justices commented on the court’s one-paragraph order, and the court did not release a full vote breakdown.

The justices weighed arguments that allowing restrictions contained in lower-court rulings to take effect would severely disrupt the availability of mifepristone.

The challenge to mifepristone is the first abortion controversy to reach the nation’s highest court since its conservative majority overturned Roe v. Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright.

The abortion opponents filed suit in Texas in November, asserting that the FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed.

They won a ruling on April 7 by U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, revoking FDA approval of mifepristone. The judge gave the Biden administration and Danco Laboratories a week to appeal and seek to keep his ruling on hold.

Responding to a quick appeal, two more Trump appointees on the 5th U.S. Circuit Court of Appeals said the FDA’s original approval would stand for now. But Judges Andrew Oldham and Kurt Engelhardt said most of the rest of Kacsmaryk’s ruling could take effect while the case winds through federal courts.

Danco Laboratories, which produces the brand name version of the drug called Mifeprex, argued that complying with the restrictions would have required a significant overhaul of the drug’s packaging and labeling, followed by FDA approval, which can take several months. Alito contended that this would not occur unless the FDA elected to use its enforcement discretion to stop Danco.