The court's ruling appeared to uphold the decision made in Dobbs last year to refer any additional abortion-related issues to the political process.
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By Mehran Mazari
Washington, The majority gave no explanations for its decision, which was an interim one. However, the Supreme Court's decision on Friday night to keep a routinely used abortion medication available delivered a strong statement from a court that had been humbled.
"Legal sanity prevailed, proving that, at least for now, disrupting the national market for an F.D.A.-approved drug is a bridge too far, even for this court," claimed David S. Cohen, a law professor at Drexel University.
Roe v. Wade was overturned ten months ago by five conservative judges, ending a constitutional right to abortion that had existed for fifty years. The bench's balance shifted substantially to the right when they did so nearly immediately after the arrival of the third Trump appointee. The three Trump justices were unanimously in favor.
Cynics would be excused for believing that the Dobbs v. Jackson Women's Health Organisation ruling from last June was the result of unbridled power. The ruling itself turned out to be extremely unpopular and a political boon for Democrats, and the public's response was undoubtedly unfavorable as the court's popularity ratings plummeted.
Chief Justice John G. Roberts Jr. stated in his concurring opinion in Dobbs that the majority had forsaken "principles of judicial restraint" at the expense of "a serious jolt to the legal system." A second shock was prevented by Friday's order.
However, Dobbs' judgment contained a promise of sorts. Eliminating the right to an abortion would be an act of judicial modesty, Justice Samuel A. Alito Jr. stated at least seven times in the majority decision.
Justice Alito stated, with only minor variations, that "the power to regulate abortion must be returned to the people and their elected representatives." This phrase was repeated again throughout the opinion.
For the time being at least, Friday's decision upheld that assurance. The court overturned a broad decision made by Matthew J. Kacsmaryk, a federal judge in Texas appointed by Donald J. Trump who is better known for his anti-abortion credentials than his legal knowledge.
His decision would have overturned a 23-year-old status quo since it relied on a court review of the numerous scientific studies supporting the Food and Drug Administration's approval and regulation of the medication.
The U.S. Court of Appeals for the Fifth Circuit's divided three-judge panel's less assertive alternative was also not accepted by the justices for the time being. The majority, comprised of two Trump appointees, would have significantly reduced but not completely eliminated the pill's accessibility.
The justices may dissent without making it public because the court took up the matter on an expedited basis, on its so-called shadow docket, making tallying the votes a difficult task. But according to the facts, the outcome on Friday night appeared to be 7 to 2.
The three liberal justices on the court, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, were very certainly in the majority. It is highly likely that Chief Justice Roberts, who defended a middle ground in Dobbs, was present.
Additionally, none of the justices Neil M. Gorsuch, Brett M. Kavanaugh, or Amy Coney Barrett who were chosen to the court by Mr. Trump voiced a disagreement.
Two justices were now left. Justice Clarence Thomas was one of those who voted in favor of the Fifth Circuit's restrictions on the drug but did not provide any explanations.
Justice Alito, who wrote the majority opinion in the Dobbs case, was the other. Despite his promises that the court will stop intervening in abortion cases, he published a dissent that contained a lot of criticism in just three paragraphs.
That was "very ironic and not at all surprising," according to Greer Donley, a law professor at the University of Pittsburgh who co-authored "Abortion Pills," an essay for The Stanford Law Review, with Professor Cohen and Rachel Rebouché, dean of Temple University Beasley School of Law.
"Justice Alito, who wrote so passionately about returning abortion to the states to be decided by their elected representatives, would have allowed an order to take effect that made abortion less accessible only in states where abortion remained legal," said Professor Donley.
The decision of Judge Kacsmaryk was put on hold for five days, until Wednesday, after the Biden administration and Danco Laboratories, the company that makes the medication, filed emergency applications on April 14 requesting the Supreme Court to get involved. He put it on hold once more until Friday when that deadline came.
Given that the week only produced Justice Alito's dissenting opinion, it is unclear how the justices spent their time. He spent a large portion of it charging the Biden administration with acting dishonestly.
For instance, Justice Alito stated that the government ought to have appealed Judge Thomas O. Rice's decision to uphold access to abortion pills. Judge Rice is a federal judge in Washington State who was selected by President Barack Obama. Judge Rice's ruling conflicted with Judge Kacsmaryk's and prevented the F.D.A. from restricting mifepristone's availability across much of the nation.
Professor of law Leah Litman at the University of Michigan said she was perplexed by Justice Alito's criticism. She claimed that if there had been any problematic behavior, it had occurred in the Texas lawsuit where the primary plaintiff, a confederation of anti-abortion organizations known as the Alliance for Hippocratic Medicine, had taken steps to guarantee that the case would be heard by a sympathetic judge.
When the plaintiffs in the Texas case incorporated in Amarillo so they could choose Judge Kacsmaryk to hear their request for a federal medication abortion ban, Professor Litman said, "It was remarkable that Alito accused the federal government of bad faith in this matter for choosing not to appeal the initial order in the Washington case."
Justice Alito continued by saying that Danco, the maker of the pill, would not have been in danger had the Supreme Court restricted the F.D.A.'s approval of the medication while the case was still pending because, in his opinion, the Biden administration would have most likely disregarded the court's decision.
The 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," Justice Alito wrote in his opinion.
The opposition, according to Professor Litman, sounded more like a political argument than a legitimate legal one. It just seems like an old man who watches a lot of Fox News is whining about having to pay for a blue tick mark, generally speaking.
The Fifth Circuit will now hear arguments in this matter, and that date is May 17. After it makes a decision, the losing party will almost probably file an appeal with the Supreme Court, giving the justices another opportunity to determine whether or not to step in.
It would be incorrect to interpret Friday's decree as a firm forecast of their future course. However, there are explanations for why an ambitious court may have turned cautious.
