In a dissent from the Supreme Court’s order pausing mifepristone restrictions from taking effect, Justice Samuel Alito said there were “legitimate doubts” that the Biden administration would have followed a court decision that went the other way.
“Here, 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,” Alito, one of the court’s conservatives, wrote.
The high court on Friday granted requests from the Biden administration and Danco Laboratories to preserve access to mifepristone, part of a two-drug regimen used in medication abortions, as its appeal of a lower court ruling proceeds.
When a federal judge in Texas originally revoked the Food and Drug Administration’s (FDA) approval of mifepristone earlier this month, some lawmakers called on the administration to ignore the ruling.
Federal officials had been cool to the suggestion as their request for a pause worked its way up to the Supreme Court, although Health and Human Services Secretary Xavier Becerra said all options remained on the table.
Alito suggested in his dissent that if the government failed in court, the FDA may have leveraged its practice of enforcement discretion, in which the agency sometimes chooses to not impose regulations and requirements on products and manufacturers, oftentimes to ensure an adequate supply will be available.
Danco Laboratories, which makes the brand name version called Mifeprex, had told the justices that the company would have needed to completely change the drug’s packaging and label and then ask FDA to approve it, typically a monthslong process.
“That would not take place, however, unless the FDA elected to use its enforcement discretion to stop Danco, and the applicants’ papers do not provide any reason to believe the FDA would make that choice,” Alito wrote.
He suggested that the federal government had not “dispelled legitimate doubts” that it would obey such an order entirely.
Alito, who authored the court’s majority opinion overturning the constitutional right to an abortion last year, ultimately decided to vote against granting the pause.
“Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone,” he continued. “Rather, it would simply refuse to take a step that has not been shown as necessary to avoid the threat of any real harm during the presumably short period at issue.”
Justice Clarence Thomas, another conservative, indicated that he would have denied the administration’s request, but he did not join Alito’s statement.
None of the other seven justices publicly dissented from the order, although it is possible more did so without disclosing their vote. At least five votes were required to grant the stay.
