On Good Friday, federal judge Matthew Kacsmaryk held that the Food and Drug Administration’s authorization of mifepristone, a drug used to induce abortions, was illegal. The abortion pill’s manufacturer quickly asked the Supreme Court of the United States (SCOTUS) for a stay. Sadly, the Justices voted 7-2 last Friday to stay Kacsmarek’s order until the appeal was decided.
The bad news is that while Kacsmaryk’s order is stayed, many innocent unborn children across the country will be murdered. The good news, however, is that the SCOTUS order issued on Friday is temporary and does not necessarily mean that SCOTUS would rule the same way once it has a chance to consider the merits.
In other words, this is far from over, and we could see a complete change of course within a few months.
“If the Court overruled Roe v. Wade less than a year ago,” you may be thinking, “then why would it not strike down the FDA’s authorization of mifepristone now?”
This case is more complicated than getting Roe overruled. A constitutional challenge to Roe was simple for two reasons: the right to abortion was not found in our Constitution or in the longstanding traditions of our people, and the stare decisis factors did not favor keeping Roe.
See how I summed that up in one sentence? It really was that simple. And it’s simple because anyone who can read English can see that abortion isn’t in the Constitution.
However, this case isn’t like that. It’s more of an administrative law case than a constitutional case. To understand what’s going on, one needs to know a lot of details about how the FDA operates, the various laws and regulations that govern it, the history of mifepristone, and the procedural rules that courts use for granting stays.
Did I lose you? I wouldn’t be surprised. I almost lost me too. My dad, who worked with this stuff for most of his career, used to say, “They don’t pay me for what I know. They pay me because I can read this stuff for more than 15 minutes without falling over.”
So in this case, getting Kacsmaryk to kill the pill wasn’t as simple as walking into court and arguing that it kills innocent humans. I wish it were that simple. Instead, to save lives, the challengers (who are represented by our friends at Alliance Defending Freedom) had to walk through all the bureaucratic details of how to analyze this case. They did an excellent job, and I think they’re right.
To put it in plain English: when a decision of this significance comes down having the potential to severely disrupt the status quo, SCOTUS generally likes to preserve the status quo while the appeal plays out.
That’s exactly what they did here.
It also didn’t help that on the same day Kacsmaryk killed the pill, another federal district judge in Washington issued an order holding exactly the opposite — that the pill was fine and that its authorization should not be revoked. That was probably another factor in the SCOTUS decision to maintain the status quo while the appeals played out.
While it is sad that SCOTUS is not letting Kacsmaryk’s order go into effect, the good news is that this is a temporary problem. The 5th Circuit Court of Appeals placed this appeal on the fast track and should issue a decision very soon. Whoever loses that appeal will likely ask SCOTUS to step in very quickly. At that point, it will no longer be a rushed job. The Court will be free to take its time to consider all the geeky points of administrative law and make an intelligent decision on the merits.
“While I am disappointed that the stay has remained in place, I am confident the appeals process will reinforce that President Biden lacked the authority to enact a dangerous mail-order abortion regime,” Alabama Attorney General Steve Marshall said on Friday. I agree. The administrative state is on a terrible losing streak before SCOTUS lately, and I pray that this case will not be any different.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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