What the Dissents in the Mifepristone Case Tell Us About What’s to Come
Justice Alito called the Supreme Court’s order “unreasonable” and “remarkable,” while feigning ignorance of decades of research highlighting the safety of mifepristone.
Despite the lifting of the blockage on the mailing of mifepristone, serious concerns remain.
(Erin Hooley/Chicago Tribune)
The Supreme Court on Thursday issued an order permanently staying a ruling by the U.S. Court of Appeals for the Fifth Circuit banning mail distribution of the abortion drug mifepristone. The court announced that the stay was in effect “pending the determination of the appeal” in the lower court, meaning that while mifepristone can continue to be mailed across the United States, the duration remains uncertain.
The decision – barely a paragraph – was strictly procedural. The court did not weigh in on the scientifically discredited and debunked arguments underlying the challenges to mifepristone advanced by abortion advocates, namely their claim that the drug is dangerous and ineffective.
Although this decision centers on the Fifth Circuit’s order, the ongoing dispute reflects the legal chaos, confusion, misinformation and medical unrest for women triggered by the Supreme Court’s 2022 ruling. Dobbs v. Jackson Women’s Health Organization, who overthrew Roe v. Wade. In this case, written by Justice Samuel Alito, he asserted that Roe deer was “woefully flawed,” “deeply damaging,” and “exceptionally weak” in its reasoning.
Alito dissent in joined cases Danco Laboratories, LLC v. Louisiana And GenBioPro, Inc. v. Louisiana shows equivalent hostility, antagonism and irrationality. According to Justice Alito, the Supreme Court’s order is “unreasoned” and “remarkable.” Essentially, he characterizes drugmakers as profit-seekers engaged in a “plan” to “undermine” his majority opinion in the country. Dobbs and ultimately thwarting state abortion bans.
Justice Alito feigns ignorance of decades of research into mifepristone safety, citing ‘concerns’ [that] “It’s ironic, especially since the drug has been on the market in the United States for nearly 26 years, and decades before that in France. This type of cynicism and contempt is what women have come to expect from Justice Alito on issues of reproductive health, rights and justice – and beyond.
What is missing are key arguments made in the manufacturers’ briefs, characterizing their claims of potential serious harm as “mere passing reference to the possibility of lost sales.”
That said, Justice Alito’s over-the-top dissent and that of Justice Clarence Thomas (alleging that the pharmaceutical manufacturers of mifepristone, Danco Laboratories and GenBioPro, are involved in criminal acts) should not be ignored. These dissents not only reflect arguments peddled by abortion foes, but they strategically plant seeds from which future cases could result in criminal prosecutions and sanctions involving not only patients and doctors, but possibly pharmaceutical company executives. As an example, Justice Thomas noted that he had written separately, supposedly to unmask a criminal enterprise, explaining: “The Comstock Act prohibits using ‘the couriers’ to ship any ‘medication…to induce abortion.’ » That this law has been dormant for decades and potentially involves products ranging from contraception to medical books is disconcerting.
In other words, despite what is clearly a sign and sigh of relief for telehealth patients and medical providers, the dissents potentially serve as the basis for a subsequent majority opinion forcing implementation of the long-dormant Comstock Act. This is worrying because the Comstock Act was not simply hibernating; he was deceased and rejected. Justice Thomas now seeks to grant CPR to an act that justified banning medical textbooks simply because of drawings depicting the naked human body.
Fortunately, it’s now public.
This case is undeniably complicated, and not just because the court issued a decision after missing its self-imposed deadline. For example, the Supreme Court ordered the Food and Drug Administration to issue a brief, given that its 2023 Risk Evaluation and Mitigation Strategy (REMS) policy, which authorizes the mailing of mifepristone, is at issue. Surprisingly, the Trump administration has not even responded to the Supreme Court’s request and has not issued a brief on this case.
Instead, with the midterm elections approaching and political pressure at a fever pitch, President Donald Trump forced the removal of FDA Commissioner Marty Makary, apparently responding to calls from anti-abortion groups. Makary submitted his resignation via text message just two days before the decision in this case.
Additionally, as noted in the Danco In short, “there has never been a court-ordered REMS,” meaning that for the first time a court has opposed the FDA’s ruling to block mail distribution of a drug.
Indeed, Thursday’s order is a response to Danco and GenBioPro’s emergency request asking the Supreme Court to stay the Fifth Circuit’s ruling imposing a ban on the mailing of mifepristone. This lower court ban, requested by the State of Louisiana, is an essential element of the post-Dobbs anti-abortion strategy, and it has affected all states, including those where abortion is not only legal but also protected by state constitutions.
Despite the lifting of the blockade, serious concerns remain, including the trafficking of false medical information and disinformation related to abortion in general, and mifepristone in particular, including its proven safety and effectiveness.
Procedurally, according to Danco and GenBioPro, the case should never have moved forward or been heard by the Fifth Circuit because the plaintiffs lacked standing – a crucial condition that must be met for litigants to proceed to resolve a dispute. To strengthen their argument, they explain in their briefs that the FDA’s REMS policy poses no economic or sovereign harm to Louisiana.
Neither the majority nor the dissenters paid attention to this argument or to any of the other important substantive assertions made by the manufacturers, including the most relevant: If the lower court’s order were allowed to take effect, it would impose avoidable immediate and irreparable harm on patients. Already, in the aftermathDobbs legal reality, pregnant patients in the United States suffered and were forced into a new Jane Crow landscape. This involves fleeing their home countries by any means available to access necessary health care in sanctuary states; bleeding for hours outside hospitals, in parking lots — until hospitals deem them sick enough to receive treatment, a practice to avoid civil and criminal penalties in anti-abortion states; criminal sanctions and convictions; and unfortunately, preventable deaths due to pregnancy complications.
The Roberts court will be remembered for playing roulette with the lives of pregnant patients. In this sense, both Dobbs and this current order are on the same wheel. The lesson of this week’s order is that through their dissents, Justices Alito and Thomas laid out what might happen, offering those who care about the rule of law, reproductive health, and abortion rights insight and an opportunity to counter their cynicism and deception.
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