This morning Justice Alito entered an administrative stay (two actually) of the order of the U.S. Court of Appeals for the Fifth Circuit halting the Food and Drug Administration regulation allowing for the prescription of mifepristone via telemedicine. Mifepristone (aka RU-486) is used in combination with misoprostol as an abortifacient. The stays are in response to applications filed by mifepristone’s manufacturers, which I discussed here.
Both orders–one in response to the application from Danco Laboratories, the other in response to GenBioPro–are identical. They are fairly pro forma, and indicate little about what the Court may ultimately do. They each stay the Fifth Circuit’s order until 5pm on May 11 and request a response to the applications by May 7. Note that the ordered response will come from the plaintiffs (Louisiana, et al.). The stays do not explicitly request a response from the Trump Administration.
As I noted yesterday, the Trump Administration’s position on the significance of the stay of the 2023 FDA regulation would likely influence the Court’s consideration of the manufacturers’ petitions. Even if a majority of justices agree with me that the bases upon which the Fifth Circuit entered the stay are questionable, both in regard to Article III standing and the merits, the Court is less likely to block the Fifth Circuit’s order if the federal government does not ask it to.
The Trump Administration cannot be happy it is in this position. As the Wall Street Journal reported this morning, pro-life organizations are very upset with Trump’s apparent softening on abortion questions in his second term. A filing with the Supreme Court seeking to preserve access to mifepristone via telemedicine will only add fuel to this fire.
Louisiana’s primary complaint in the current litigation is that the availability of mifepristone via telemedicine makes it too easy for individuals to circumvent Louisiana’s abortion laws, particularly when telemedicine is combined with mail-order prescriptions. It seems to me, though, that there are things that the federal government could do to address this concern other than modify the 2023 rule. For instance, the Department of Justice could use the Comstock Act to prosecute the mailing of mifepristone where doing so would violate applicable state laws, and thereby help reinforce state policy choices with regard to abortion without imposing a national policy. We will see whether the Administration considers any moves in this direction.
