The Mifepristone Dissents by Justices Thomas and Alito Are a Hot Mess
Yesterday, the Supreme Court issued a brief order extending its stay of the Fifth Circuit decision that invalidated FDA approval of the abortion pill mifepristone for prescription via telemedicine and delivery via the mail (or other courier). Some reporting indicated that the vote was 7-2. It probably was. We know that two Justices published dissents, but it’s the Court’s custom not to provide the vote on per curiam orders. Dissenters can, if they choose, say they are dissenting, but they don't always do so. So we know that Justices Thomas and Alito dissented because they wrote to tell us so, but we don’t know whether zero, one, or two other Justices also dissented.
We do know the reasons that Justices Thomas and Alito gave--and they are doozies.
Let's start with Justice Thomas. He writes that the makers of mifepristone are not entitled to seek relief from the Court because they are engaged in a "criminal enterprise." He claims that the notorious Comstock Act, enacted in 1873, bans sending abortion drugs through the mail. He's right that read literally and with no attention to the pre-enactment and long post-enactment history of the Act, it does seem to say that. But in light of the very substantial body of scholarship showing how reactionary and undemocratic it would be to read the Comstock Act as Justice Thomas would read it, the notion that the Comstock Act could justify overturning FDA approval of prescription-by-mail mifepristone through a drive-by decision on the shadow docket is astounding.
Readers interested in diving more deeply into the Comstock Act's history--which is inextricably intertwined with puritanical censorship--should read this article by Professors Reva Siegel and Mary Ziegler. I was invited to respond and did so in this article, which agrees with their analysis of the Act and offers some thoughts on its implications for constitutional questions.
In that article I fretted about what I saw as a "nonzero risk that the second Trump administration or a reactionary majority of the Supreme Court could deploy Comstock in bad faith" to ban abortion nationwide without a new Act of Congress. The fact that no one else--not even Justice Alito--joined Justice Thomas in relying on Comstock is encouraging, but it does not reduce the risk all the way to zero. The issue was not presented to the Court in Louisiana's brief. There is thus still some reason to worry that more Justices might join Thomas in relying on Comstock in a future case.
Before proceeding to Justice Alito's dissent, I should respond to a possible objection to my critique of Justice Thomas for saying what he did about Comstock on the shadow docket. The objection goes like this: Dorf, you're a freakin' hypocrite. If you think the shadow docket is an inappropriate way for the Court to make law, you should be criticizing the Court's majority for reversing the Fifth Circuit without a word of explanation.
That would be a fair criticism if here or elsewhere I had taken the position that the Supreme Court should never do anything without explanation. But neither I nor any sensible Court watcher takes that position. For example, I have no problem with the Court denying (or granting) certiorari without giving reasons. Nor do I think it problematic for the Court to stay lower court rulings without explanation when those rulings are obviously wrong. And, as I wrote here on the blog last week, the Fifth Circuit was obviously wrong in this case.
Most of my earlier essay on the case aimed to show that Louisiana lacked standing. Its alleged sovereign injury, once properly understood, amounts to a complaint that the federal government is under-enforcing federal law--which the Court has said does not confer standing. The state's alleged pocketbook injury is nonexistent because, as anybody who knows anything about health economics knows, abortion is cheaper than childbirth, and thanks to the Hyde Amendment, Louisiana's Medicaid funds don't even pay for abortion (via pill or otherwise) but do pay a whole lot for prenatal and delivery care.
Justice Alito's dissent aims to show that the mifepristone makers aren't injured by the Fifth Circuit ruling because the Trump administration will revert to the 2020-2023 policy of simply not enforcing the requirement of in-person visits to obtain the drug. This strikes me as highly dubious, partly because the administration could (under political pressure from its anti-abortion base) abandon that policy at any moment, but also because it's hard to see why either side is litigating this case so fiercely if nothing is really at stake.
Be that as it may, it is striking to see Justice Alito invent a reason why the mifepristone makers lack standing to contest an appeals court ruling that bars prescribers from sending their pills in the mail nationwide, while he completely ignores the objections to Louisiana's standing to sue the FDA.
That's not to say that Justice Alito completely ignores Louisiana's arguments with respect to standing. He clearly credits the state's sovereign interest, beginning his dissent by complaining about a blue-state "scheme to undermine" his precious ruling in Dobbs. By enacting laws shielding their providers against consequences in states that ban abortion, he says, states like New York are undercutting the ability of states like Louisiana to ban abortion. That would be a relevant point, I suppose, if Louisiana had sued New York, but Louisiana sued the FDA.
Meanwhile, speaking of hypocrisy, it's notable that neither Justice Thomas nor Justice Alito expressed any concern about the fact that the Fifth Circuit issued a nationwide injunction. It did so notwithstanding the Supreme Court's decision last year in Trump v. CASA holding that such injunctions generally aren't available. It got around that ruling by quoting the following language from CASA: "Nothing we say today resolves the distinct question whether the [Administrative Procedure Act] authorizes federal courts to vacate federal agency action." That's fair enough, so far as the CASA majority opinion goes, but Justice Alito, joined by Justice Thomas, wrote a separate concurrence in CASA expressing skepticism about loopholes that would allow nationwide injunctions by other names.
To be fair, Justice Alito has not specifically objected to using the APA's "set aside" language as a means of obtaining nationwide relief--but Justice Thomas has. He did so by joining Justice Gorsuch's concurrence in United States v. Texas. Thus, with respect to the scope of relief granted by the Fifth Circuit, Justice Thomas's silence is more problematic than Justice Alito's.
None of the foregoing should obscure the core issue. As the mifepristone makers note in their briefs and put into the district court record, the FDA relied on multiple studies evaluating outcomes for over 55,000 patients to conclude that dispensation without in-office visits is safe. Louisiana is raising bogus safety concerns as a pretext, when it is obvious that its real objection to mifepristone and indeed to all forms of abortion is that the state's lawmakers oppose abortion on moral grounds. In other settings, the Supreme Court has shown a disturbing tendency to allow states to dress their moral/religious/social views in the garb of concern for patient safety--most notably with respect to gender-affirming care for minors. That it has not allowed Louisiana to play the same game with respect to abortion pills, even if only for now, counts as good news.
-- Michael C. Dorf