WASHINGTON — It was an interim ruling and the majority gave no reasons. But Friday night’s Supreme Court order to preserve the availability of a widely used abortion pill was nevertheless a strong signal from a chastened court.
“Legal common sense prevailed, proving that, at least for now, disrupting the national market for an FDA-approved drug is a bridge too far, even for this court,” said David S. Cohen, a law professor at Drexel University.
Ten months ago, five conservative justices overturned Roe v. Wade, overturning a constitutional right to abortion that had been in effect for half a century. They did so almost as soon as a third Trump appointee arrived, tipping the balance on the bench sharply to the right. All three Trump justices were in majority.
Cynics can be forgiven for thinking that last June’s decision in Dobbs v. Jackson Women’s Health Organization was a product of brute force. Public reaction was certainly negative, as court approval ratings plummeted and the decision itself proved to be deeply unpopular and a political windfall for Democrats.
In his concurrence in Dobbs, Chief Justice John G. Roberts Jr. said. that the majority had abandoned “principles of judicial restraint” at the cost of “a serious shock to the justice system”. Friday’s order avoided a second shock.
But the Dobbs decision also held a kind of promise. The majority opinion, written by Judge Samuel A. Alito Jr., said at least seven times that abolishing the right to abortion was a show of judicial modesty.
“The power to regulate abortion must be returned to the people and their elected representatives,” wrote Judge Alito, in a phrase that, with only minor variations, has been used as a refrain throughout opinion.
Friday’s order fulfilled that promise for the time being. The court blocked a sweeping ruling by Matthew J. Kacsmaryk, a Texas federal judge appointed by President Donald J. Trump, known more for his bona fide anti-abortion than for his legal acumen.
His ruling, based on judicial doubts of the many scientific studies that supported the Food and Drug Administration’s approval and regulation of the pill, would have upended a 23-year status quo.
Nor did the justices tentatively accept a less assertive alternative from a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit. The majority, consisting of two Trump appointees, would have greatly curtailed, but not eliminated, the pill’s availability.
Since the court rushed the case, on its so-called shadow roll, the judges could disagree without saying so publicly, making vote counting an imprecise science. However, based on the available evidence, Friday night’s vote turned out to be 7 to 2.
It is almost certain that the three liberal members of the court – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – were in the majority. It’s a very good bet that Chief Justice Roberts, who plotted a compromise position in Dobbs, was with them.
And none of the members of the court appointed by Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — noted a dissent.
That left two judges. One of them, Judge Clarence Thomas, voted to allow the restrictions on the pill imposed by the Fifth Circuit, but gave no reason.
The other was Judge Alito, the author of the Dobbs majority opinion. Despite his assurances that the court would step out of the abortion trade, he issued a dissenting opinion that packed a bunch of grievances into about three pages.
That was “very ironic and not at all surprising,” said Greer Donley, a law professor at the University of Pittsburgh and an author, with Professor Cohen and Rachel Rebouché, dean of Temple University Beasley School of Law, of “Abortion Pills.” an article to be published in The Stanford Law Review.
“Justice Alito, who wrote so passionately about bringing abortion back to the states their elected representatives ruled, would have allowed an order to go into effect that made abortion less accessible only in states where abortion remained legal,” Professor Donley said. .
Shortly after the Biden administration and Danco Laboratories, which manufactures the pill, filed emergency applications on April 14 asking the Supreme Court to intervene, Judge Alito, who oversees the Fifth Circuit, suspended Judge Kacsmaryk’s ruling for five days, till Wednesday. When that deadline came, he paused it for a second time, until Friday.
It’s not clear how the judges spent the week as it produced only one opinion, Judge Alito’s dissenting opinion. He devoted much of it to accusing the Biden administration of acting in bad faith.
For example, Judge Alito said the government should have appealed a decision upholding access to abortion pills from Judge Thomas O. Rice, a Washington state federal judge appointed by President Barack Obama. Judge Rice’s decision was at odds with Judge Kacsmaryk’s, preventing the FDA from restricting the availability of mifepristone in much of the country.
Leah Litman, a law professor at the University of Michigan, said she found Judge Alito’s criticism curious. If there was any questionable conduct, she said, it was in the Texas trial, as the lead prosecutor, a coalition of anti-abortion groups known as the Alliance for Hippocratic Medicine, had taken steps to ensure that the case before a friendly judge. .
“It was noteworthy that Alito accused the federal government of bad faith in this case because it chose not to appeal the original order in the Washington case,” Professor Litman said, “when the plaintiffs in the Texas case joined Amarillo so they could elect Judge Kacsmaryk as the one to hear their request for a nationwide ban on medication abortion.”
Justice Alito added that Danco, the pill’s manufacturer, would have had nothing to fear if the Supreme Court had limited the FDA’s approval of the drug while the case dragged on because, he said, the Biden administration would most likely overturn the ruling. of the court would have ignored.
“The government,” wrote Judge Alito, “has not dispelled the legitimate doubt that it would obey even an unfavorable order in these cases, much less choose to take enforcement action to which it strongly objects.”
Professor Litman said the dissent was inconsistent with the work of top Supreme Court justices. “It generally just reads like an old guy watching a lot of Fox News and ranting about how he had to pay for a blue tick,” she said.
The case now returns to the Fifth Circuit, which will hear arguments on May 17. After the case is decided, the losing side will almost certainly appeal to the Supreme Court, and the judges will then have another chance to decide whether to weigh in.
It would be a mistake to read Friday’s order as a definitive prediction of where they are headed. But there are reasons to believe that an ambitious court has become cautious.
