The decision blocked the Food and Drug Administration’s (FDA) policy that allowed the mifepristone to be prescribed through telemedicine and delivered in the mail.
However, on Saturday, the Supreme Court paused the ruling a the request of two mifepristone manufacturers who claimed it was “unprecedented,” negatively impacted “time-sensitive medical decisions” and “unleashed regulatory chaos.”
The Court Alito granted the emergency request and temporarily restored mail-order abortion drugs.
Erin Hawley serves as counsel at Alliance Defending Freedom, supporting their Center for Life Team, and helped argue the case with Louisiana against the FDA. She spoke with Tony Perkins on “Washington Watch” about the Supreme Court’s block of the lower-court ruling.
“When the Supreme Court gets a stay request from one of the parties before the court of appeals, it is quite typical for the court to enter what's called an administrative stay so that the full court can consider the stay request,” explains Hawley.
The administrative stay is in place until May 11 at 5 p.m. EDT.
She affirms that this is nothing unusual and was in fact expected. The important stuff, she says, now starts as both Louisiana and the FDA are instructed to respond on May 7.
“Louisiana will file on Thursday a response to that application before the courts, and we hope that the full Supreme Court will let the Fifth Circuit's decision control and the reinstatement of those crucial protections for women to continue,” says Hawley.
Critics note that the drug manufacturers argued that Louisiana had no standing in this case despite the state’s laws being undermined. In fact, Hawley says the Biden administration claimed in a previous Supreme Court case about the 2023 Risk Evaluation and Mitigation Strategies (REMS) that no party, person, or state had a right to challenge the REMS.
She believes the Fifth Circuit is correct in finding that untrue and points out that Louisiana has two ways to satisfy the standing doctrine.
“One is sovereign injury. The state's pro-life laws are utterly unenforceable. Nearly a thousand abortions take place every month because pro-abortion doctors mail these drugs across state lines, enabled by those 2023 REMS,” states Hawley. “And secondly, Louisiana has identified over $92,000 worth of economic harm just from two cases of abortion drug mifepristone. There's no question that actual economic harm is much higher.”
That doesn't even consider, she says, the harm done to women and the unborn.
AFN reported previously that case between Louisiana and the FDA went to the appeals court after the district court halted it until the FDA finished their safety study on the abortion drug.
Hawley notes that the FDA appears to be “foot dragging” the review and mentions how the Fifth Circuit found that, even if the FDA is reviewing mifepristone, it doesn’t mean that their current policy should stay in place if harmful.
Next steps for Supremes
As to what happens next, Hawley says the Supreme Court has a couple of options.
“It could either agree with the drug manufacturers and put the Fifth Circuit's decision on hold pending appellate review. What that would mean is that pro-abortion doctors continue mailing drugs unlawfully into states like Louisiana,” states Hawley.
She hopes the court recognizes Louisiana’s standing, stating that it’s not really disputed that it has a strong merits argument.
“The other option that the court could consider is something called ‘cert. before judgment.’ The drug manufacturers have both suggested that if the court declines to stay the Fifth Circuit's decision and keeps those protections for women, then the court should grant cert, take briefs and hear arguments right away,” informs Hawley.
