U.S. Supreme Court

Alito 'packed a lot of grievance' in dissent as Supreme Court allows access to abortion pill—for now

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Boxes of the drug mifepristone sit on a shelf at the West Alabama Women’s Center in Tuscaloosa, Alabama, on March 16, 2022. The drug was approved by the Food and Drug Administration in 2000. Photo by Allen G. Breed/The Associated Press.

Justices Samuel Alito and Clarence Thomas dissented from the U.S. Supreme Court’s decision Friday to allow continued full access, for now, to the abortion medication mifepristone. But Alito spoke only for himself in a written dissent; Thomas did not indicate the reason for his dissent.

The Supreme Court’s April 21 order kept in place the U.S. Food and Drug Administration’s 2000 approval of mifepristone and its later decisions expanding access to the drug. The Supreme Court’s order remains in place during the appeal on the merits before the 5th U.S. Circuit Court of Appeals at New Orleans and until disposition on a cert petition—if one is filed.

Alito’s dissent “packed a lot of grievance into its roughly three pages,” the New York Times reports. Alito, the author of the decision that overturned Roe v. Wade and the right to abortion in June 2022, devoted much of his dissent “to accusing the Biden administration of acting in bad faith,” the New York Times asserts.

He also appeared to accuse some justices of hypocrisy because they granted the emergency stay in the mifepristone case, even though they objected to the Supreme Court’s “shadow docket” in other instances. The shadow docket is the name given to the Supreme Court’s rulings on emergency requests that are outside its regular docket of argued cases.

“I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here,” Alito said.

The New York Times, CNN and SCOTUSblog have coverage of the Supreme Court’s order, while commentators wrote blog posts at the Volokh Conspiracy (by Will Baude, a professor at the University of Chicago Law School), at One First (by Steve Vladeck, a professor at the University of Texas School of Law), and at Adam’s Legal Newsletter (by Adam Unikowsky, a partner at Jenner & Block).

Alito criticized the government because it appealed decisions against it by U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas and the 5th Circuit but did not appeal a contrary decision by a different federal judge in Washington. Then the government tried to leverage the Washington judge’s decision to claim that there would be regulatory chaos if the Supreme Court didn’t keep access to the drug available, Alito said.

Baude and Vladeck have problems with that assessment. According to Baude, Alito ignores the fact that justices “have repeatedly invoked a principle” holding that the government suffers irreparable injury any time that its policies are blocked, which is a factor needed to obtain emergency relief.

According to Vladeck, there would be “massive effects (including a fair amount of chaos),” even if there was no differing decisions. Under the 5th Circuit decision in the case before the Supreme Court, mifepristone would continue to be available, but FDA decisions expanding access to the drug would be blocked. As a result, generic mifepristone would no longer be allowed, and the company that makes mifepristone would have to go through a relabeling and approval process, according to examples cited by Vladeck and SCOTUSblog.

Alito argued that the mislabeling problem did not constitute irreparable harm for the drugmaker because there is no reason to think that the government would use its enforcement discretion to stop the drugmaker.

“Here,” Alito wrote, “the government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.”

Vladeck called that statement a “remarkable assertion.”

“Not only has no one in the executive branch even hinted that such a move was remotely in the cards,” he wrote, “the White House specifically poured cold water on the idea. Near as I can tell, it’s been 162 years since the last time a president directly ignored a court order. … It’s hard to imagine where Justice Alito got these ‘legitimate doubts’ from (except, perhaps, right-wing media).”

Leah Litman, a professor at the University of Michigan Law School, told the New York Times that Alito’s dissent takes on a political tone.

“It just generally reads like an old guy who watches a lot of Fox News and is ranting about how he had to pay for a blue check mark,” Litman said.

See also:

ABAJournal.com: “One mifepristone decision ‘runs roughshod’ over procedural issues, the other ‘is no better,’ law profs say”

ABAJournal.com: “Justice Alito keeps full access to mifepristone in place pending briefing next week”

ABAJournal.com: “Why the 5th Circuit is allowing abortion pill sales but pausing expanded access to the drug”

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