The interim order by the Supreme Court to stay until Wednesday the district court decision that would restrict access to mifepristone, a drug used in abortions, suggests that the justices want more time to mull over the government’s emergency appeal. 

The government was joined in its appeal by the company that produces mifepristone, Danco Laboratories. They asked the high court to swat aside a ruling of the riders of the United States Court of Appeals for the Fifth Circuit that left District Court Judge Matthew Kacsmaryk’s ruling intact.

That decision held that the Food and Drug Administration’s authorization of the drug — which went into effect 23 years ago and has been intermittently renewed since — should be suspended. It also would tighten the window within which the drug can be administered and ban its generic version from the market.   

The case arrives at the Supreme Court at a time when abortion is roiling both state and national politics. In the wee hours of Friday morning, Governor DeSantis signed a Florida bill banning abortions in the Sunshine State after six weeks of pregnancy. It is the courts, though, that will now decide the fate of mifepristone. 

The brief note, issued Friday afternoon, was signed by none other than Justice Samuel Alito, who penned the majority opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade to hold that there is no constitutional right to an abortion.

In Dobbs, Justice Alito wrote that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” He added that “like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided.” 

Justice Alito issued this order because he is the justice responsible for evaluating appeals from the Fifth Circuit. Interim orders like this one are typically unaccompanied by commentary or elaboration. The ruling curtailing mifepristone was set to go into effect on Saturday.  

The solicitor general, Elizabeth Prelogar, opined that the ruling issued by Judge Kacsmaryk and preserved by the appellate riders is “profoundly damaging.” Danco Laboratories added that the decision “has created regulatory chaos across the country.”

The government also decried the “arbitrarily compressed timelines” that have resulted in the mifepristone case racing through the courts at breakneck speed. Ms. Prelogar intoned that “issues of such imperative public importance should not be litigated in this manner.” 

Danco made a business case to the court, explaining that it would be “exceedingly difficult, if not impossible” for it to continue manufacturing mifepristone if the justices do not overrule Judge Kacsmaryk. It warned that it will be forced to “halt operations” if high court intervention is not secured. 

Adding to the confusion is the decision of another district court judge, Thomas Rice, who sits at Washington State. Ruling in response to a lawsuit filed by a cadre of Democratic attorneys general who wanted to loosen the restrictions that currently apply to  mifepristone. Judge Rice rejected that request, but ruled in favor of the status quo. 

The legal director of the Alliance Defending Freedom — the group that mounted the challenge to mifepristone — Erin Hawley, issued a statement in response to the stay that noted that the Food and Drug Administration “illegally approved chemical abortion drugs and has evaded its legal responsibility to answer the American people’s questions for two decades.”