The Mifepristone Briefs Are In, But One Dog Did Not (Yet) Bark

Louisiana has filed its response to Danco Laboratories and GenBioPro’s applications for a stay of the U.S. Court of Appeals for the Fifth Circuit order barring the prescription of mifepristone to terminate pregnancies via telemedicine. As one would expect, Louisiana defends its aggressive standing theory and the Fifth Circuit’s order.

In case the justices did not have enough to consider before the administrative stay entered by Justice Alito expires on Monday, there are nearly three-dozen amicus briefs filed on behalf of various individuals and organizations who care about the outcome . Few of these briefs are likely to affect the outcome, however, and even fewer add anything of substance to the parties’ briefs.

Activist groups, political figures, and an increasing number of academics want to fly the flag for their respective side, and amicus briefs let them do that. The various groups get to tell their members and donors that they took the fight to One First Street, and appellate attorneys get another line on their CVs, whether or not the briefs add anything of value.

Everyone else may have filed a brief, but the Food and Drug Administration did not. The Fifth Circuit’s order halts an FDA regulation, but the FDA seems not to care. The FDA is reviewing the 2023 decision to allow mifepristone prescriptions via telemedicine, and has acknowledged some concerns with the 2023 analysis, but the Trump Administration has generally been quite aggressive in responding to lower court orders that block federal agency action. It has argued repeatedly that such orders necessarily cause the government irreparable harm. This puts the Trump Administration in the position of either upsetting pro-life organizations or throwing the FDA under the bus.

As the administrative stay expires Monday at 5pm, it is reasonable to expect something further from the justices before then. What will the Court do? There are several options beyond simply blocking the Fifth Circuit’s order or allowing it to go into effect.

If the justices want to better understand the FDA’s position, they could request briefing from the FDA, and further delay an ultimate decision. The justices could also decide that this case merits greater examination, particularly on the standing question.

As there is a circuit split between the Fifth and Ninth on the theory of state standing pushed by Louisiana, I would not be surprised if the Court treats the stay requests as applications for certiorari before judgment. Louisiana anticipated this possibility in its filing, and noted it would acquiesce to certiorari before judgment and oral argument before the summer recess if the Court were inclined to grant the stay request. With everything else the justices have on their plate before July, I doubt the Court would put this case on such a short fuse, but a grant of certiorari to examine the state standing theory is a real possibility.

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