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The fight over the decision by Texas District Judge Matthew Kacsmaryk to ban mifepristone has reached the Supreme Court. Late Friday, Justice Samuel Alito announced (not leaked, but actually announced) that he was staying the decision and the appeal to the Fifth Circuit until Wednesday to give the Supreme Court time to consider emergency appeals from the Biden administration and Danco, the company that makes the brand-name Mifeprex. The stay should not be interpreted as anything more than "we need a few days to read the appeals so we can decide what to do." As a result of the stay, the status quo ante is restored until Wednesday.
To recap the situation, Kacsmaryk made some decisions that are legally completely indefensible. For one, the statute of limitations for challenging the FDA's decision to approve mifepristone ran out 17 years ago. Any first-year law student who was awake in class would know that a lawsuit filed 17 years too late should have been instantly rejected. For another, the people suing have virtually no basis for claiming they have standing to sue since they have not been injured in any way by mifepristone's availability. Some of the doctors claimed they might have to deal with a patient who took mifepristone some day, but you can't claim a possible future injury as standing to sue. The judge just made it all up as he went along.
The New Orleans-based U.S. Court of Appeals for the Fifth Circuit took the case and ruled almost immediately. Its ruling was almost as odd, staying part of Kacsmaryk's order and making up new rules on its own. For example, it decided to allow mifepristone to be used up to 7 weeks of pregnancy instead of 10 but it banned mail-order sales. Also, pregnant women will have to visit a physician three times to get a prescription. No other drug has such a requirement.
All of this is on hold now until Wednesday, when the Supreme Court will either make a decision, schedule oral hearings, or extend the temporary stay a bit longer. (V)