“Justice Alito, who has written so passionately about returning abortion to the states to be decided by their elected representatives, would have allowed an order to go into effect making abortion less accessible only to the states. where abortion remains legal,” Professor Donley said.
Shortly after the Biden administration and Danco Laboratories, which makes the pill, filed emergency applications on April 14 asking the Supreme Court to intervene, Justice Alito, who presides over the Fifth Circuit, stayed Judge Kacsmaryk’s decision. for five days, until Wednesday. When that deadline arrived, he postponed it a second time, until Friday.
It’s not clear how the justices will spend the week, since they only issued one opinion, a dissent from Justice Alito. He spent much of it accusing the Biden administration of acting in bad faith.
Justice Alito said, for example, that the administration should appeal a decision upholding access to the abortion pill from Judge Thomas O. Rice, a federal judge in Washington State appointed by President Barack Obama. Judge Rice’s decision was in tension with one from Judge Kacsmaryk, which blocked the FDA from limiting the availability of mifepristone in most of the country.
Leah Litman, a law professor at the University of Michigan, said she found Justice Alito’s criticism curious. If there is questionable conduct, he said, it is in the Texas litigation, because the lead plaintiff, a coalition of anti-abortion groups known as the Alliance for Hippocratic Medicine, has taken steps to ensure that the case reflects the a friendly judge. .
“Alito is remarkably accusing the federal government of bad faith in this matter for choosing not to appeal the initial order in the Washington case,” said Professor Litman, “when the plaintiffs in the case of Texas annexed to Amarillo so they could elect a Judge. Kacsmaryk will hear their plea for a nationwide ban on medication abortion.”
Justice Alito added that Danco, the pill’s maker, would have had nothing to fear if the Supreme Court blocked the FDA’s approval of the drug while the case was pending because, he said, the Biden administration likely ignored the decision in court