State Rep. Julie McCluskie (D-Dist. 61) encourages crowd at Salida rally against Supreme Court decision on June 26, 2022. Daniel Flanders photo
On Friday afternoon, the Supreme Court of the United States of America (SCOTUS) issued a stay in the Alliance for Hippocratic Medicine v. FDA case, allowing mifepristone, one of the two medications used to terminate pregnancies, and manage miscarriages, among other medical conditions. It accounts for more than half of all abortions in the United States, the drug to remain available while additional appeals are made.
While the original case was brought before a conservative, Trump-appointed judge in Texas in the 5th Circuit Court of Appeals, if this ruling were to stand, it would impact women across the entire country, regardless of the actions taken in 17 states and the District of Columbia to protect women’s right to reproductive care.
The seven to two decision pitted the majority block of conservative justices again each other, at least temporarily, with conservative justices Clarence Thomas and Samuel Alito, publicly dissenting.
We don’t know, and won’t know much else about their decision. The case was taken up by SCOTUS as an emergency request, and the Supreme Court hears cases like this on what is called a “shadow docket.” According to the Brennan Center for Justice, cases that are considered on the shadow docket don’t get the same level of review as other cases. This means that there usually isn’t much if any explanation offered for the decisions and justices aren’t required to offer much explanation for why they voted as they did.
Which makes the minority dissent opinion by Justice Samuel Alito all the more interesting. As the judge who wrote the majority opinion that overturned Roe v. Wade last summer, Alito created some judiciary “theater” by calling out three female justices by name — including fellow conservative justice Amy Coney Barrett, for voting to stay the lower court’s ruling while the case proceeds through that court.
In reaction to the decision, The Executive Director of Women’s March Rachel O’Leary Carmona, issued the following statement:
“This stay, while a relief, is the bare minimum. The imminent threat to access to mifepristone and abortion care remains.
“Make no mistake, the Supreme Court’s decision to stay a ban on mifepristone was not a decision made on the merits of the case. There is no question that Judge Kacsmaryk acted politically and without legal authority to issue a ruling challenging the FDA’s authorization and the national availability of mifepristone – a drug proven safe and effective for more than two decades.
“The Supreme Court acted out of self-preservation, and out of a desire to not seem as nakedly political as Matthew Kacsmaryk.
“Senator Mitch McConnell and his Republican allies hijacked our courts and now a majority of the justices on the Supreme Court are partisan extremists, put on the bench to solely enact an anti-woman agenda.
“The Supreme Court chose to stay this decision because they know that enacting any restrictions on mifepristone would be widely unpopular and prove to the American people that the Supreme Court is broken, lacking legitimacy.
“This is a moment of relief. A moment. But make no mistake, they are coming for our rights. And we will defend them.
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