The fight over the abortion pill is far from over

Noah Feldman
Bloomberg Opinion (TNS)

Sanity prevailed at the U.S. Supreme Court on Friday when it ruled that the abortion drug mifepristone should stay on the market while a legal challenge wends its way through the appeals process. The decision represents a rebuke to the U.S. Court of Appeals for the Fifth Circuit, which had violated the norms of sane legal procedure by rolling back Food and Drug Administration rules without a full hearing or briefing.

But it is too soon to tell whether the Supreme Court’s sanity on what was essentially a procedural issue will translate into sanity on abortion in the longer run. The justices’ unexplained ruling was limited. And the issue will likely be back at the high court before long.

To understand what was — and was not — at issue before the Supreme Court, you need to know some of the background. I apologize in advance for going into the weeds. But without some weed-wading, it’s impossible to understand the limits of the Supreme Court’s weed-whacking.

Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a medication abortion, are seen at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022. Mifepristone is taken first to stop the pregnancy, followed by Misoprostol to induce bleeding. (Robyn Beck/AFP via Getty Images/TNS)

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Remember that a district court judge in Texas started this whole madness in early April by issuing a preliminary injunction that rolled back the FDA’s 23-year-old authorization of mifepristone. A preliminary injunction is a ruling in which a judge says that one side in the case before the court is likely to win and will suffer irreparable harm unless the judge issues an order in that party’s favor immediately, before the case goes to trial.

The FDA then went to the Fifth Circuit to seek an emergency stay of the judge’s order pending appeal. That is, the FDA wanted the appeals court to say that the drug would remain available while the lawsuit made its way through the appeals process.

The Fifth Circuit responded with a fake compromise. It held that the district court had gone too far in rolling back the FDA’s decades-old authorization. So it stayed that part of the judge’s order. But the appeals court declined to stay the parts of the judge’s order that rolled back a series of decisions the FDA made about mifepristone since 2016, which allow its use between 7 and 10 weeks of pregnancy, telehealth prescriptions, and delivery through the mail. Practically, that meant the drug’s availability would be substantially curbed pending appellate review.

This action by the Fifth Circuit was very much outside the bounds of judicial normalcy. Courts are only supposed to overturn agency action if it is unlawful or arbitrary and capricious. Because those are high barriers to overcome, courts are not in the business of blocking administrative orders that have been functioning before they’ve had a chance to consider the challenges in the light of full briefing and a careful look at the facts.

The Supreme Court’s decision stayed the entirety of the district judge’s order pending the appeal of the judge’s preliminary injunction to the Fifth Circuit. This was a rebuke to the Fifth Circuit for upholding even part of the district judge’s order.

What next?: But it’s important to be clear that this ruling casts little to no light on what the justices might do after the Fifth Circuit eventually hears the full case, a trial that’s slated to begin May 17. Whatever the Fifth Circuit rules, the parties are likely to appeal to the Supreme Court again.

And we don’t know what the justices will do when the case returns to them. The reason we can’t really read between the lines is that the Fifth Circuit overreached so grossly. That was sufficiently outside the rules of the game that multiple conservative justices must have agreed to reverse it.

I say “multiple” because technically, the Supreme Court doesn’t report its own votes when it grants an emergency stay. It simply allows justices who want to do so to register dissents. In this instance, Justice Clarence Thomas registered a dissent without giving a reason; justice Samuel Alito noted a dissent with three pages of confusing and confused reasoning.

We can guess that the court’s three liberals opposed the Fifth Circuit’s ruling, and we know they were joined by at least two conservatives, because a victory takes at least five votes. Most probably, the remaining two conservatives didn’t dissent either, or they would’ve noted their dissents.

There is a clue here. Justices Neil Gorsuch and Amy Coney Barrett almost certainly have not made up their minds on the merits of the lawsuit. Maybe Justice Brett Kavanaugh hasn’t, either. (Chief Justice John Roberts is more likely to conclude the challenge to the FDA is groundless.) All of them, however, could reasonably have agreed that the Fifth Circuit shouldn’t have endorsed the lower court’s rollback before actually hearing the case. And that’s all the Supreme Court did here.

Good housekeeping: The Supreme Court signaled that it realizes the case may come back to it. In its order, the court said that its own stay of the district court’s order will remain in place even after the Fifth Circuit rules. If the Fifth Circuit’s ruling is appealed to the justices and they decline to hear it, then that would be the end of the court’s stay. If the justices agreed to hear the case, then the Supreme Court’s stay would remain until the justices ruled on the merits.

This sounds more complicated than it is. In practice, it’s just good housekeeping. The justices don’t want to have to issue more emergency stays. They recognize, however, that if the Fifth Circuit rules as it has telegraphed it will — striking down the FDA’s post-2016 mifepristone rules — the case is likely to end up back in their laps.

The upshot is that this case is far from over, and the justices haven’t said anything yet about who should win. They’ve restored a modicum of sanity to the procedural process here, which is good news. It would be wonderful if that sanity eventually extends to applying ordinary principles of administrative law, in which case the FDA would be free to continue doing its job. But it would be a mistake to extrapolate too much from what we know now.

— Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”