Home Politics In Abortion Pill Ruling, the Supreme Court Trades Ambition for Prudence

In Abortion Pill Ruling, the Supreme Court Trades Ambition for Prudence

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In Abortion Pill Ruling, the Supreme Court Trades Ambition for Prudence

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“Justice Alito, who wrote so passionately about returning abortion to the states to be decided by their elected representatives, would have allowed an order to take effect that made abortion less accessible only in states where abortion remained legal,” Professor Donley said.

Soon after the Biden administration and Danco Laboratories, which manufactures the pill, filed emergency applications on April 14 asking the Supreme Court to intervene, Justice Alito, who oversees the Fifth Circuit, paused Judge Kacsmaryk’s ruling for five days, until Wednesday. When that deadline arrived, he paused it for a second time, until Friday.

It is not clear how the justices spent the week, as it yielded only one opinion, the dissent from Justice Alito. He devoted much of it to accusing the Biden administration of acting in bad faith.

Justice Alito said, for instance, that the administration should have appealed a decision affirming abortion pill access from Judge Thomas O. Rice, a federal judge in Washington State appointed by President Barack Obama. Judge Rice’s decision was in tension with the one from Judge Kacsmaryk, blocking the F.D.A. from limiting the availability of mifepristone in much of the country.

Leah Litman, a law professor at the University of Michigan, said she found Justice Alito’s critique curious. If there was questionable conduct, she said, it was in the Texas litigation, as the lead plaintiff, a coalition of anti-abortion groups known as the Alliance for Hippocratic Medicine, had taken steps to ensure that the case would appear before a friendly judge.

“It was remarkable that Alito accused the federal government of bad faith in this matter for choosing not to appeal the initial order in the Washington case,” Professor Litman said, “when the plaintiffs in the Texas case incorporated in Amarillo so they could select Judge Kacsmaryk as the one to hear their request for a nationwide medication abortion ban.”

Justice Alito added that Danco, the pill’s manufacturer, would have had nothing to fear had the Supreme Court curtailed the F.D.A.’s approval of the drug while the case moved forward because, he said, the Biden administration would most likely have ignored the court’s ruling.

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