Making Sense of FDA v. American College of Obstetricians and Gynecologists
On Friday evening, the Court decided FDA v. American College of Obstetricians and Gynecologists. At long last, an abortion case finally made it onto the Court’s docket.
For nearly two decades, the federal government required doctors to dispense in-person mifepristone, a drug used in performing abortions. During the COVID-19 pandemic, the Trump Administration relaxed the in-person requirement for other drugs, but not mifepristone. ACOG argued that the failure to relax the in-person requirement itself constituted an undue burden under Casey. A District Court judge in Maryland entered a nationwide injunction, requiring the FDA to relax the in-person requirement. The District Court ruled on July 13, 2020.
Four months later, the Supreme Court finally ruled. But not really. The Court didn’t grant a stay. It didn’t deny a stay. Instead, the Court remanded the case back to the District Court. And during the remand, the stay application is held in abeyance. The unsigned per curiam order stretches a paragraph:
The Government seeks a stay of an injunction preventing the Food and Drug Administration from enforcing in-person dispensation requirements for the drug mifepristone during the pendency of the public health emergency. The Government argues that, at a minimum, the injunction is overly broad in scope, given that it applies nationwide and for an indefinite duration regardless of the improving conditions in any individual State. Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review. The Court will therefore hold the Government’s application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed. See Febre v. United States, 396 U. S. 1225, 1225–1226 (1969) (Harlan, J., in chambers); see also Parr v. United States, 351 U. S. 513, 520 (1956). The District Court should rule within 40 days of receiving the Government’s submission.
The Roberts Court has kicked some transparent punts. But this one takes the cake. Rather than granting or denying the stay, the Court holds the application in abeyance. We are in the middle of a pandemic. Four months have elapsed sine the District Court decision. The Supreme Court has had this case, fully briefed
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