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DOJ urges SCOTUS to keep mifepristone ruling on hold during appeal to prevent "scramble"
Justice Samuel Alito extends the stay for 48 hours, through 11:59 p.m. Friday.
Late Tuesday night, the Justice Department told the U.S. Supreme Court that it needs to act to prevent lower court orders from going into effect in 24 hours in the medication abortion case out of Texas — orders that DOJ argue “would scramble the regulatory regime” for mifepristone.
Currently, the April 7 ruling against the U.S. Food and Drug Administration from U.S. District Judge Matthew Kacsmaryk — as narrowed pending appeal by the U.S. Court of Appeals for the Fifth Circuit (more on that below) — is on hold until 11:59 p.m. ET Wednesday via an administrative stay by order of Justice Samuel Alito.
Update, 4:00 p.m.: Justice Samuel Alito extends the administrative stay for 48 hours, through 11:59 p.m. Friday.
In the late filing Tuesday, Solicitor General Elizabeth Prelogar urged the court that if it cannot rule on DOJ’s April 14 request for a stay pending appeal by then, it should extend Alito’s administrative stay.
Danco Laboratories, the maker of Mifeprex, filed its reply less than an hour later, early Wednesday, highlighting the scramble that has already occurred since Kacsmaryk’s ruling.
“This first-in-a-century judicial second-guessing of FDA’s scientific judgment prompted immediate chaos and nationwide confusion,” Danco’s lawyers from Hogan Lovells wrote.
DOJ and Danco’s filings followed the the anti-abortion challengers’ opposition to the stay request, filed earlier in the day, and a flurry of amicus curiae (friend of the court) briefs filed at the court in the high-profile shadow docket case in recent days.
DOJ and Danco Laboratories, the maker of Mifeprex, “seek to reinstate FDA’s unlawful mail-order abortion regimen and strip away necessary and longstanding requirements to protect women’s health,” the lawyers from Alliance Defending Freedom who represent the challengers wrote. “But Applicants fail to meet the requirements for emergency relief ….”
Some further action from the court — a further administrative stay, an order on the stay requests, or a decision to take up the case — are expected, but not guaranteed, by the end of the day Wednesday.
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Kacsmaryk’s April 7 ruling, which purported to halt the FDA’s 2000 approval of mifepristone and all changes easing access to the drug since, has already been appealed and narrowed during the appeal by a panel of the U.S. Court of Appeals for the Fifth Circuit. Under the appeals court’s ruling, only the changes easing access to the drug would be halted during the appeal at the Fifth Circuit — meaning the drug would remain available but under its 2000 restrictions. That appeal, as of now, is slated to be argued at the Fifth Circuit on May 17.
On April 14, the Justice Department and Danco Laboratories, maker of Mifeprex, went to the Supreme Court, asking for a full stay of Kacsmaryk’s ruling during the appeal — so the drug would remain available under the current, eased standards that include ending the in-person dispensing requirement for mifepristone.
Alito, later that day, issued an administrative stay, halting the enforcement of Kacsmaryk’s order in full until 11:59 p.m. Wednesday and ordering a response from the challengers, anti-abortion medical groups and doctors, by noon Tuesday.
The ADF lawyers representing the anti-abortion groups did so early Tuesday, arguing that the government was advancing “a radical view of standing” — the rule that a party suing in court must show an actual injury that can be traced to the defendant and would be able to be addressed by the lawsuit.
The line was almost definitely intended to offset the challenge to their standing claims that the plaintiffs have faced in this case. Most notably, Jenner & Block partner Adam Unikowsky has thoroughly detailed the problems with plaintiffs’ standing — and the lower courts’ interpretation of it in this case.
In short, if anyone has “a radical view of standing” in this case, it’s the plaintiffs.
Of the flurry of litigation, Danco’s lawyers added in their reply another important note for the justices: “All of this is playing out at breakneck speed, in a stay posture, on an incomplete record.”
In DOJ’s reply brief, in addition to reiterating its argument for a full stay of Kacsmaryk’s order, the government took issue with the challengers’ high court response:
The lower courts’ orders would thus create “significant chaos for patients, prescribers, and the health care delivery system.” … Respondents do not even acknowledge that reality. Nor do they justify the harm of denying women lawful access to a drug under conditions FDA determined are safe and effective and instead requiring them to undergo invasive surgical procedures. This Court should issue a stay to preserve the status quo and avoid those disruptive results.
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In addition to the stay request discussion, the anti-abortion challengers took an aggressive position regarding the alternative argument made by both DOJ and Danco on April 14 that, if the Supreme Court doesn’t grant a stay pending appeal, it should take up the case immediately (for “merits” review) and set it for expedited briefing and argument so that there could be a decision before the summer recess.
To that, the ADF lawyers wrote:
If the Court grants FDA’s alternative request for expedited merits review, then the Court should expand the questions presented to include (1) whether the Comstock Act’s prohibition against mailing articles “intended for producing abortion,” 18 U.S.C. 1461, includes mifepristone, (2) whether pregnancy is an “illness” for purposes of FDA’s Subpart H regulations for accelerated approval of new drugs, and (3) whether mifepristone provides a “meaningful therapeutic benefit,” 21 C.F.R. 314.500, over alternatives.
The inclusion of the question regarding the Comstock Act — an 1873 law addressing public morals and the mail — was a notable example of the extremist nature of this litigation and these lawyers, given that even the Trump appointees on the Fifth Circuit weren’t willing to rule on the Comstock Act question in their stay decision last week.
The Comstock Act question, however, isn’t going away.
As noted at Law Dork on Tuesday morning, Jonathan Mitchell, the former solicitor general of Texas who was behind that state’s vigilante six-week abortion ban, filed a lawsuit in New Mexico on Monday seeking to use the Comstock Act in an effort to restrict that state’s effort to protect abortion rights.
In the weeks since Kacsmaryk’s ruling, Dahlia Lithwick, Ian Millhiser, Michelle Goldberg, Paul Blumenthal, Sarah McCammon, and Matthew Perrone — among many others — have all delved into how this criminal law is being used in the post-Roe era to block abortion access. (Among other things, a December 2022 opinion from the Justice Department’s Office of Legal Counsel is figuring into a lot of these discussions.)
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