**Supreme Court Restores Full Availability Of Abortion Pill In "Shadow Docket" Ruling**
Supreme Court Restores Full Availability Of Abortion Pill In "Shadow Docket" Ruling
_Authored by Jonathan Turley,_ (https://jonathanturley.org/2023/04/22/supreme-court-restores-full-availability-of-abortion-pill-in-shadow-docket-ruling/)
On Friday night, the Supreme Court ordered the abortion pill mifepristone to continue to be made available to women by mail as challenges continue to be litigated in lower courts. As I mentioned on Fox yesterday before the ruling, the Court usually restores the status quo while challenges are being heard. That is what it did again in this case. However, there are **dissents from two of the most vocal critics of abortion rights: Justices Clarence Thomas and Samuel Alito.**
?itok=Ee22weE1 (
?itok=Ee22weE1)
In the only decision in the case, **Justice Alito strongly suggests that some of his colleagues (cited by name) are engaging in rank hypocrisy in using what is known as the “shadow docket” for these purposes.**
As a result of last night’s decision, the drug will continue to be available by mail and can be used for up to 10 weeks into a pregnancy
On April 7, U.S. District Judge Matthew Kacsmaryk in Texas invalidated the Food and Drug Administration’s approval of mifepristone despite its availability for many years. The challenge to how the drug was approved came decades after the drug was approved and long after the time for such challenges had run. However, there were a series of changes, including recent changes in 2020, that challengers cited in support of the lower court’s review. Judge Kacsmaryk found that the agency had failed to meet critical federal standards for promulgating these rule changes.
After the Texas ruling, a federal judge in Washington state added a complication by issuing an opposing preliminary injunction that barred the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.” Many of us stated that the dueling injunctions made an expedited review by the Court extremely likely.
Notably, the Court did not uphold the compromise struck by the United States Court of Appeals for the Fifth Circuit in enjoining some recent changes while continuing to allow the drug to be distributed nationally.
The Fifth Circuit considered some of these early changes to be beyond review due to the timing of the challenge. However, while lifting Judge Kacsmaryk’s injunction on the drug nationally, it preserved some of the injunction of recent FDA changes. Those changes would have limited the ability to get the drug without a doctor’s involvement as well as limiting the time when the drug could be taken in the early stages of a pregnancy.
The Justice Department and Danco Laboratories, which makes the name brand version of mifepristone, Mifeprex, brought the matter to the Court for expedited review in seeking to lift all of the injunctions.
**The Court used the “shadow docket” (used for procedural decisions) to dispense with the case. It did not include a majority decision or list the justices voting to restore the availability of the drug. However, Thomas and Alito did publish a dissenting opinion by Alito that lashed out at their colleagues not only for their decision but also the use of the shadow docket for this purpose.**
Justice Alito noted that the decision of the Court was unnecessary because the FDA could have still made the drug available pending appeal. Thus, the FDA could have used its enforcement discretion to allow Danco to continue distributing mifepristone pending final resolution in the case. As such, Alito argued that “the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim.”
The discussion of the use of the shadow docket was interesting for a number of reasons. First, **Alito called out three colleagues by referring to past objections from Justices Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett in the use of the shadow docket.**
**The referral to the justices was a peevish moment for the Court since Justice Alito was previously criticized for the use of the shadow docket to make major rulings.**
He used this occasion to level the same objection and suggest a degree of hypocrisy in the majority.
The term “shadow docket” is often credited to University of Chicago law professor William Baude who used it to describe the summary decisions in a law review article (https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1961&context=public_law_and_legal_theory)in 2015. He noted that the Court was issuing “a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and i…