What Justice Samuel Alito Said in Abortion Drug Ruling Dissent

The U.S. Supreme Court protected access to the abortion pill, mifepristone, on Friday, freezing a lower court ruling on the medication that is pending an appeal.

The SCOTUS decision allows mifepristone to remain available based off the Food and Drug Administration’s (FDA’s) approval of the medication and subsequent actions that made the pill more easily accessible. This month, Texas District Attorney Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, had ruled in favor of a November 2022 lawsuit filed by the anti-abortion organization Alliance for Hippocratic Medicine that argued the FDA “never” had the authority to approve the use of mifepristone in the first place.

Kacsmaryk’s decision is now halted pending an appeals review by the 5th U.S. Circuit Court of Appeals. The administration of President Joe Biden and a manufacturer of mifepristone had requested an emergency stay on Kacsmaryk’s decision after the federal government appealed the lower-court ruling.

Supreme Court Justice Samuel Alito poses for an official photo in Washington, D.C., on October 7, 2022. Alito, alongside conservative Justice Clarence Thomas, on Friday dissented from fellow justices who granted a stay on a lower-court ruling that would have restricted access to a widely used abortion medication.
Olivier Douliery/AFP/Getty

The Supreme Court’s one-paragraph decision was published unsigned and did not explain why the high court had decided to grant the Biden administration’s request. Conservative Justices Clarence Thomas and Samuel Alito publicly dissented from the decision, but the votes by the other justices were not disclosed.

In his decision to dissent, Alito wrote that the requested stay could not be granted because the applicants had “not shown that they are likely to suffer irreparable harm” while the Fifth Court of Appeals hears the arguments of the case.

“As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market,” Alito wrote. “It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations.”

Mifepristone was first approved by the FDA in 2000 for medical termination of a pregnancy through the first seven weeks of gestation. The decision was extended, however, in 2016 to allow the drug to be used up to 10 weeks’ gestation.

Other decisions have been made since that have expanded access to the abortion pill, which is used in over half of medically terminated pregnancies in the U.S. In December 2021, the FDA removed the requirement that mifepristone could only be dispensed in-person, and in January, the administration approved a rule change that allows retail pharmacies to offer the medication.

Alito also argued that since “the applicants’ Fifth Circuit appeal has been put on a fast track, with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek—from either the Court of Appeals or this Court—in the near future if their arguments on the merits are persuasive.”

“At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim,” he continued. “The applicants claim that regulatory ‘chaos’ would occur due to an alleged conflict between the relief awarded in these cases and the relief provided by a decision of the United States District Court for the Eastern District of Washington.

“It is not clear that there actually is a conflict because the relief in these cases is a stay, not an injunction, but even if there is a conflict, that should not be given any weight.”

At the same time Kacsmaryk sided with an anti-abortion group on April 7, a rival ruling was made by District Judge Thomas O. Rice of Washington state, an appointee of former President Barack Obama who ordered that the FDA had to keep mifepristone available in at least 17 Democratic-led states.

Friday’s decision is the second time SCOTUS has considered an effort to restrict abortion access in the U.S. in the past year. The conservative-led high court ruled in June to overturn federal protection for abortions in the landmark Dobbs v. Jackson case.

Biden said in a statement published Friday evening that the Supreme Court’s decision to grant his requested stay prevented “a lower court decision from going into effect that would have undermined FDA’s medical judgment and put women’s health at risk.”

“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” read the statement. “I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.”

Alliance Defending Freedom Senior Counsel Erik Baptist, lead attorney representing the Alliance for Hippocratic Medicine and its fellow defendants, said in a statement shared with Newsweek Friday evening that the Supreme Court had “decided to maintain the status quo” in its decision to grant the Biden administration’s stay.

“Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts,” Baptist said. “The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions. We look forward to a final outcome in this case that will hold the FDA accountable.”

Newsweek has emailed the American Association of Pro-Life Obstetricians and Gynecologists for additional comment.

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