Somebody should stand up for federal law, state law, science, and human life. Tonight, only two justices of the Court were willing to do so.
As I explained ten days ago, the Fifth Circuit had a strong basis to stay the 2023 Biden FDA ruling that allowed the abortion pill to be dispensed without an in-person doctor visit.
The Trump FDA had essentially conceded that the Biden rule was enacted without adequate basis in medical studies; Louisiana, challenging the rule, showed that it was spending money on hospital care for women who took the pill without a doctor’s supervision; additional women could suffer or die from complications that could be avoided by a doctor’s care; and the rule actively thwarts Louisiana’s ability to enforce its laws against homicide. Against this is set the federal interest in enforcing a rule first and studying second whether the rule should be a rule at all.
The case came to the Supreme Court on an emergency “shadow docket” appeal by the pharma companies that make the pill (which had to defend the rule while the Trump administration played Pontius Pilate, aloof from taking either side). Justice Samuel Alito, as circuit justice overseeing the Fifth Circuit, granted two administrative stays of the Fifth Circuit order to allow the full Court to decide the question. They expired this evening. Unfortunately, the Court ruled 7-2 in Danco Laboratories, LLC v. Louisiana to use the “shadow docket” power to restore the Biden rule while the petition for certiorari proceeds.
That alone should stand as a reminder that the Court’s emergency docket rulings are hardly lockstep in defending conservative goals. Nobody wrote a word to defend or justify what the Court did. Only Alito and Justice Clarence Thomas dissented — placing them at odds with the Trump administration, which plainly would prefer this whole thing and its pesky pro-life challengers to go away.
Thomas noted the inconvenient fact that the Court was looking the other way at a federal as well as state crime:
As Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using “the mails” to ship any “drug . . . for producing abortion.” 18 U. S. C. §1461. A neighboring provision makes it a felony to use “any express company or other common carrier or interactive computer service” to ship “any drug . . . designed, adapted, or intended for producing abortion.” §1462(c). [As the Biden FDA acknowledged], applicants ship mifepristone to certified pharmacies, which, in turn, must ship mifepristone using a shipping service to users. . . . As relevant to this case, mifepristone shipped to Louisiana, which bans abortion, causes nearly 1,000 abortions per month. . . . All of this violates the Comstock Act.
Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes. [Quotations and citations omitted.]
Alito noted the offense to federalism, and thereby to Louisiana’s self-government, from the complicity of the federal government, blue states, and Big Pharma in undermining state laws:
The Court’s unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization (2022), which restored the right of each State to decide how to regulate abortions within its borders. Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. . . .
But Louisiana’s efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana’s and seek to undermine their enforcement. These medical providers and private organizations have developed an operation enabling women in Louisiana and other States that restrict abortions to place an online order for a pill . . . that induces abortion. . . .
The manufacturers of the drug, including [petitioners], are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana. One might think that Louisiana could stop or impede this out-of-state interference in its law enforcement by bringing civil actions or criminal charges against the participants in this scheme. But States have effectively blocked these efforts by enacting so-called “shield laws,” which prevent Louisiana from visiting any adverse legal consequences on the perpetrators. . . . This scheme would not have been possible under FDA regulations had the federal government not taken steps in 2021 and 2023 to facilitate mail-order abortions.
The Trump-Vance administration could put a stop to this if it wanted, but it prefers to enable massive blue-state resistance helmed by people who hate the administration. That’s what happens when you put the FDA under the ultimate leadership of a pro-abortion Kennedy. The wreck of Trump health-care policy has already led to the resignation of FDA head Marty Makary. Somebody should stand up for federal law, state law, science, and human life. Tonight, only two justices of the Court, and nobody in the administration, were willing to do so.