(LifeSiteNews) — The Supreme Court has decided to preserve temporarily access to abortion drugs while the Fifth Circuit Court of Appeals considers a more permanent disposition of the case at its May 17 hearing. Is it false hope to think that the Supreme Court might allow restrictions on chemical abortions after the case has been fully litigated in the lower Court?
The Supreme Court’s decision last week was part of its “shadow docket” in which the Court makes interim decisions on cases that have not been fully reviewed and argued. Justice Alito noted that the Justices have been lambasted in the past for the “scanty review this Court gives matters on its shadow docket.” Justice Barrett has warned that “the Court should not act “on a short fuse without benefit of full briefing and oral argument.”
Judges are generally reluctant to make decisions that disrupt the status quo on major issues without full briefing and oral argument. So, is it possible that some of the more middle-of-the-road members of the Court, like Justices Gorsuch, Barrett and Kavanaugh, will rule against chemical abortions once the case is fully developed?
Until the Supreme Court intervened, the Fifth Circuit Court of Appeals had limited the use of chemical abortion drugs based on its finding of improprieties in the FDA’s 2016-2023 rule changes that loosened restrictions on those abortions. The Fifth Circuit temporarily declined to block the FDA’s original 2000 approval of the abortion drug based on a legal technicality, a 6-year statute of limitations, but the Court acknowledged that was a “close call” to be considered more carefully at its May 17 hearing.
There is a reasonable chance that the Fifth Circuit Court of Appeal will make a more permanent ruling against the abortion pills after its May hearing, again subject to review by the Supreme Court. The Fifth Circuit is a generally conservative Court not inclined to let the FDA get away with politicized drug approvals that flaunt legal safety study requirements. Then it will be up to the Supreme Court once more.
Here’s the possible path to a pro-life victory:
The Court of Appeal will conduct its hearing on May 17 and hopefully render a decision restricting the abortion drugs. That decision would be on hold, however, while the Supreme Court decides whether or not to intervene. If the Supreme Court declines to take the case, any abortion drug restrictions imposed by the Court of Appeal would take effect. If the Supreme Court agrees to take the case, we would be waiting for the Court’s briefing, hearing and opinion-writing schedule, probably some time next year.
What are the odds of a ruling against the abortion pills? Frankly, not too good if the Court’s temporary ruling last week indicates their general leaning on the case. On the other hand, once the case is fully litigated, and as the health risks of these abortion pills are more exposed, just maybe there will be five Justices willing to hold the FDA accountable.