On Friday, the Supreme Court issued a 7-2 decision to allow sales of the dangerous abortion pill to continue while the legal case doctors filed against the illegal FDA approval process moves forward.
Justice Samuel Alito joined Justice Clarence Thomas in voting to block the abortion pill while the case continued – or at least banning mail-order abortions so women would not or be injured during the continuation of the lawsuit.
His reasoning has received little attention but it’s certainly worth noting.
Alito voted to keep the 5th Circuit decision in place because of the Biden administration’s lawlessness and suggestions from abortion advocates that the Biden administration just ignore lower courts.
“[T]he Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” Alito wrote.
That was not just an offhanded observation. It was the basis for Alito’s legal judgment.
“For these reasons, I would deny the stay applications,” he said.
As the Washington Post notes, there is a reason for Alito’s assertion:
Some left-leaning legal experts and Democrats, including Sen. Ron Wyden (D-Ore.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.), said the Biden administration should ignore the ruling in Texas or, less drastically, simply not enforce it by citing its discretion in such cases. They would soon be joined by none other than Rep. Nancy Mace (R-S.C.), who said, “That is the FDA’s decision on the efficacy, safety and usage of that particular drug. … I agree with ignoring it at this point.”
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On April 9, this idea was presented to Health and Human Services Secretary Xavier Becerra during a CNN interview. He was noncommittal and said he didn’t want to get into such “speculation,” while eventually telling host Dana Bash: “Everything is on the table.”
Later that day, though, a Department of Health and Human Services spokeswoman sought to clarify Becerra’s comments.
“People are rightly frustrated about this decision — but as dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision,” spokeswoman Kamara Jones wrote on Twitter.
Ignoring the rule of law has serious and dangerous consequences and although someone eventually reigned in Necerra on the idea, the fact that the notion of simply ignoring the courts went as far as it did was troubling enough for Alito to say that the Supreme Court needs to uphold the lower court so Biden would take it more seriously.