Supreme Court Temporarily Halts Lower Court Decisions Stopping FDA Abortion Pill

WASHINGTON, DC – Biden administration regulations allowing the abortion pill to be shipped through the mail are back in force for five days as a Supreme Court administrative stay has paused recent court orders on the matter until the justices can consider additional legal arguments on both sides.

During the Clinton administration, the Food and Drug Administration (FDA) in 2000 approved mifepristone, a drug that causes abortion. Then in 2016 and 2019 the FDA removed several safeguards that limited the use of the so-called abortion pill.

Then in 2021 the Biden administration’s FDA removed a major restriction, announcing it would create a regimen allowing the abortion pill to be sent through the mail, leading a group called the Alliance for Hippocratic Medicine to sue in federal court. The mail option was finalized in 2023.

This month, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas handed down a 67-page decision that the FDA’s decisions were illegal under federal law, issuing a nationwide injunction blocking the abortion pill.

Days later, the U.S. Court of Appeals for the Fifth Circuit partially granted a stay requested by the Biden Justice Department. The court’s 42-page opinion temporarily put on hold the part of the decision about the 2000 FDA decision because it might be past the deadline for bringing legal challenges, though added that it was a “close call” and that the court might go the opposite direction after receiving additional legal arguments. But the appellate court rejected a stay on anything from 2016 to the present, affirming the trial court’s injunction.

All of those items were for a stay pending appeal. The appeals court will now receiving full legal briefing and hear oral arguments on those issues to make a final decision.

The Justice Department asked the Supreme Court to grant a stay of the lower court decisions.

Justice Samuel Alito supervises the Fifth Circuit, and on Friday he issued an administrative stay for five days while the Alliance for Hippocratic Medicine files its papers opposing a stay, ordering that group to do so by noon on Tuesday.

Alito will then likely refer both sets of papers to the other eight justices to decide on whether to intervene at this point or to let the appeal take its ordinary course in the Fifth Circuit.

An administrative stay is not in any way a reflection on the legal merits of the case. A Supreme Court justice can issue one just to preserve the status quo while the court is receiving arguments from both sides.

The applications are Danco Laboratories v. Alliance for Hippocratic Medicine, No. 22A901, and FDA v. Alliance for Hippocratic Medicine, No. 22A902 in the Supreme Court of the United States.

Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.