Supreme Court Justice Alito Extends Stay on Mifepristone Telemedicine Prescriptions

Justice Samuel Alito of the U.S. Supreme Court has extended an administrative stay that pauses a Fifth Circuit Court of Appeals order blocking the prescription of the abortion medication mifepristone via telemedicine.

The new deadline for the Court’s decision is Thursday, the same day the justices are expected to issue one or more opinions in argued cases.

Why Did Justice Alito Extend the Stay?

The extension suggests the justices are carefully considering how to proceed with the stay applications. Possible outcomes include:

• Granting or denying the stay requests, with one or more justices filing accompanying opinions.
• Deciding whether to grant certiorari before judgment to address the threshold standing question, as the Fifth Circuit’s order conflicts with a Ninth Circuit ruling.

Key Factor: The FDA’s Silence

One complicating factor in the Court’s deliberation is the Food and Drug Administration’s failure to file anything with the Court. Typically, the federal government files a response when a lower court blocks a federal action, signaling concern over potential harm. However, the FDA—and by extension, the Solicitor General—has remained silent, indicating a lack of urgency about the Fifth Circuit’s order.

This silence removes a key consideration for the Court: the presumption that blocking federal action causes irreparable harm to the government. Without the federal government’s input, the justices must weigh the remaining equities without the usual bias toward intervention.

Likely Outcome: A Stay Will Be Granted

Given the lack of government intervention and the absence of a clear thumb on the scale, the justices may ultimately grant a stay unless they decide to take the case before judgment. The arguments for standing by Louisiana—which mirror those in the AHM litigation—appear superficially plausible but weaken under scrutiny.

Even if Louisiana’s alleged injuries are deemed cognizable, it remains speculative whether those injuries are fairly traceable to the FDA’s 2023 decision allowing mifepristone prescriptions via telemedicine. Additionally, it is uncertain whether blocking the regulatory change would provide meaningful redress.

Broader Implications for Standing and Emergency Relief

Critics argue that this case highlights a gap in standing requirements for challenging FDA drug approvals or regulatory relaxations. However, the Court’s reluctance to enforce strict limits on state standing claims in recent years—despite U.S. v. Texas—suggests that the justices may see this as an opportunity to address the issue.

If the Court aims to reduce reliance on emergency relief via the shadow docket, curtailing state standing claims would be a necessary step. Meanwhile, observers critical of the Court’s handling of the shadow docket face a dilemma: they may desire an immediate order blocking the Fifth Circuit’s action, yet they also insist on detailed judicial explanations, which require time.