Bench Memos

Law & the Courts

Justice Alito on Court’s Bizarre Inconsistency in Failing to Block District-Court Injunction on FDA Rules on Abortion Drugs

As I discussed in this post from nearly three months ago, federal district judge Theodore D. Chuang granted a preliminary injunction that bars the Food and Drug Administration from enforcing during the coronavirus pandemic two of its rules governing the drug regimen used in medication (i.e., non-surgical) abortions—rules that were adopted during the Obama administration.

In a strange order yesterday, the Supreme Court declined to act on the government’s emergency application to stay the injunction but instead invited the government to file a motion with Judge Chuang seeking to dissolve, modify, or stay the injunction.

Justice Alito, joined by Justice Thomas, soundly objects in a forceful dissent. An excerpt (italics in original; underlining added; citations omitted):

Six weeks have passed since the application was submitted, but the Court refuses to rule. Instead, it defers any action until the Government moves in the District Court to modify the injunction and the District Court rules on that motion, a process that may take another six weeks or more.

There is no legally sound reason for this unusual disposition. The only justification even hinted by the Court is the possibility that modification of the injunction may be required due to changes in the severity of the problems caused by the COVID–19 pandemic, but that possibility does not justify the Court’s refusal to rule. Indeed, for all practical purposes, there is little difference between what the Court has done and an express denial of the Government’s application. In both situations, the FDA rule may not be enforced, and in both situations, the Government is able to move the District Court to modify the injunction based on changed circumstances.

There is, however, one difference (but not a legally significant one) between what the Court has done and the express denial of the Government’s application. Expressly denying a stay would highlight the inconsistency in the Court’s rulings on COVID–19-related public safety measures. In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies. The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred.

In the present case, however, the District Court took a strikingly different approach. While COVID–19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade….

Disregarding the Chief Justice’s admonition against judicial second-guessing of officials with public health responsibilities, the judge concluded that requiring women seeking a medication abortion to pick up mifepristone in person during the COVID–19 pandemic constitutes an “undue burden” on the abortion right, and he therefore issued a nationwide injunction against enforcement of the FDA’s requirement. The judge apparently was not troubled by the fact that those responsible for public health in Maryland thought it safe for women (and men) to leave the house and engage in numerous activities that present at least as much risk as visiting a clinic—such as indoor restaurant dining, visiting hair salons and barber shops, all sorts of retail establishments, gyms and other indoor exercise facilities, nail salons, youth sports events, and, of course, the State’s casinos. And the judge made the injunction applicable throughout the country, including in locales with very low infection rates and limited COVID–19 restrictions.

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