This afternoon, Justice Alito extended the administrative stays pausing the order of the U.S. Court of Appeals for the Fifth Circuit halting the prescription of the abortion medication mifepristone via telemedicine. The new deadline is Thursday (when the Court is also expected to issue one or more opinions in argued cases).
What explains the extension? The justices are presumably deciding what to do about the stay applications. One possibility is that they will either grant or deny the stay requests, with one or more justices filing opinions. Another possibility is they are considering whether to grant certiorari before judgement to consider the threshold standing question, as the Fifth Circuit’s order created a split with the U.S. Court of Appeals for the Ninth Circuit.
One factor potentially complicating the Court’s consideration of these stay requests is the failure of the Food and Drug Administration to file anything with the Court. This complicates things because in the usual course the federal government is among those asking the Court to intervene when a lower court blocks a federal action. The Court generally assumes that orders blocking federal action cause irreparable harm to the federal government, and such harm is generally a threshold consideration for the Court to consider providing extraordinary relief. But here the FDA (or, rather, the Solicitor General) is silent, suggesting that the federal government is not too concerned about the Fifth Circuit’s order. It also means there is no thumb on the scale when the justices balance the remaining equities.
Insofar as the justices’ sense of which party is likely to prevail on the merits will do the work, I would think a stay will ultimately be granted, unless the justices decide to grant cert. Louisiana’s arguments for Article III standing, like those in the AHM litigation, sound superficially plausible, but wilt under examination. Even assuming Louisiana has alleged cognizable injuries, it remains fairly speculative that the alleged injuries are fairly traceable to the FDA’s decision to allow mifepristone prescriptions via telemedicine and quite uncertain that blocking the 2023 regulatory change would provide any meaningful redress. It is fair to complain that this could mean no one has standing to challenge FDA drug approvals or regulatory relaxations, but so be it.
It is fair to complain that the Court has not been particularly vigilant enforcing limits on state standing claims in recent years (U.S. v. Texas notwithstanding), but that’s more an argument for granting cert, and ending “special solicitude” for state standing claims, than for compounding the error. Indeed, curtailing state standing is a necessary (but not sufficient) step the justices should take if they wish to scale back the demand for emergency relief on the interim docket.
Meanwhile, those who are generally critical of the Court’s handling of the “shadow docket” must feel a bit conflicted. On the one hand, they surely want an immediate order blocking the action of the Fifth Circuit. On the other hand, they generally insist that the justices explain themselves, and drafting opinions takes time. It is almost as if there are trade-offs involved.
