What happened
The U.S. Supreme Court on Thursday granted emergency stay applications from Danco Laboratories LLC and GenBioPro Inc., putting on hold a Fifth Circuit order in litigation over FDA rules governing mifepristone distribution while the appeal continues.
The court's brief order stayed the Fifth Circuit's May 1 order pending disposition of the appeal and any timely certiorari petition. If certiorari is denied, the stay will terminate automatically; if the justices grant review, it will end when the court's judgment is sent down.
The dispute stems from Louisiana's Administrative Procedure Act challenge to the FDA's removal of an in-person dispensing requirement for mifepristone. Justice Samuel Alito's dissent said the district court denied Louisiana interim relief, the Fifth Circuit suspended the 2023 changes pending appeal, and Danco and GenBioPro then sought stays from the high court.
The majority did not explain its reasoning. Alito called the court's stay an "unreasoned order" and said he would have denied the applications because the manufacturers had not shown irreparable injury. He wrote that, absent an indication that the FDA planned to resume enforcing the in-person dispensing requirement, there was no reason to believe the companies could not continue their current distribution practices.
Justice Clarence Thomas also dissented, writing that the manufacturers had not met their burden for interim relief. Thomas said he wrote separately to note Louisiana's argument below that shipping mifepristone for use in abortions is a criminal offense under the Comstock Act.
The order keeps the Fifth Circuit's suspension from taking effect for now, preserving the manufacturers' Supreme Court stay while the appellate case proceeds. The next major step is the Fifth Circuit appeal, followed by any certiorari petition that could bring the dispute back to the justices.