As I explained ten days ago, the Fifth Circuit had a strong basis to stay the 2023 Biden FDA ruling that allowed the abortion pill to be dispensed without an in-person doctor visit.

The Trump FDA had essentially conceded that the Biden rule was enacted without adequate basis in medical studies; Louisiana, challenging the rule, showed that it was spending money on hospital care for women who took the pill without a doctor’s supervision; additional women could suffer or die from complications that could be avoided by a doctor’s care; and the rule actively thwarts Louisiana’s ability to enforce its laws against homicide. Against this is set the federal interest in enforcing a rule first and studying second whether the rule should be a rule at all.

The case came to the Supreme Court on an emergency “shadow docket” appeal by the pharma companies that make the pill (which had to defend the rule while the Trump administration played Pontius Pilate, aloof from taking either side). Justice Samuel Alito, as circuit justice overseeing the Fifth Circuit, granted two administrative stays of the Fifth Circuit order to allow the full Court to decide the question. They expired this evening. Unfortunately, the Court ruled 7-2 in Danco Laboratories, LLC v. Louisiana to use the “shadow docket” power to restore the Biden rule while the petition for certiorari proceeds.

That alone should stand as a reminder that the Court’s emergency docket rulings are hardly lockstep in defending conservative goals. Nobody wrote a word to defend or justify what the Court did. Only Alito and Justice Clarence Thomas dissented — placing them at odds with the Trump administration, which plainly would prefer this whole thing and its pesky pro-life challengers to go away.

Thomas noted the inconvenient fact that the Court was looking the other way at a federal as well as state crime:

As Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions. The Comstock Act........

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