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Supreme Court issues a temporary stay in the Texas mifepristone case

JUANA SUMMERS, HOST:

Let's turn to what has been a busy week at the Supreme Court. Earlier today the justices temporarily put on hold the lower court's limiting of the abortion drug mifepristone, which means for now the current drug regimen can remain in place. There's also been new investigative reporting focused on a real estate deal between Justice Clarence Thomas and a Texas billionaire. NPR legal affairs correspondent Nina Totenberg joins us now to wrap up the week. Hi there.

NINA TOTENBERG, BYLINE: Hi there.

SUMMERS: So Nina, let's just start with what's happened today. The Supreme Court issued a temporary stay in response to the Justice Department's emergency appeal. Had that not happened, lower court orders limiting access to mifepristone would have gone into effect. Is that right?

TOTENBERG: Yeah, that's right. And although the 5th Circuit Court of Appeals in a preliminary ruling said the drug could be used for up to seven weeks, it issued an opinion which the FDA said would cause chaos throughout the country.

SUMMERS: OK. Walk us through what the Justice Department said in its appeal.

TOTENBERG: The administration brief uses unusually strong language in urging the court to block the lower court order. Here's what it said. (Reading) The district court countermanded the scientific judgment the FDA has maintained across five administrations, nullified the approval of a drug that has been safely used by millions of Americans over more than two decades and upset reliance interests in the health care system that depends on the availability of mifepristone as an alternative to surgical abortion for women who choose to lawfully terminate early pregnancies.

And the brief said that harms would be felt throughout the nation because in every state, including states that ban abortion, mifepristone has lawful uses - for instance, to treat women who are miscarrying.

SUMMERS: As I understand it, the Biden administration also argues that the challengers had no right to be in court at all. What did they say?

TOTENBERG: Yes. The administration argues first that the anti-abortion doctors who brought this case have no legal standing to challenge the FDA regulations because they have no concrete stake in the drug. They neither take it nor prescribe it, and they haven't come up with a woman who claims to have been injured by the drug.

SUMMERS: What about the changes in the last several years in the FDA's regulations allowing telemedicine appointments to get the drug instead of in-person appointments, for example, and allowing the drug to be sent to patients by mail?

TOTENBERG: The 5th Circuit, like federal District Court Judge Matthew Kaczmaryk, apparently didn't believe the numerous studies on the safety of those provisions and invalidated them, too.

SUMMERS: So Nina, where does this leave us with all of this?

TOTENBERG: You know, this is a huge case, Juana. It's the biggest case at the Supreme Court since it overturned Roe. And this time, the business community is lined up with the Biden administration because they're terrified that the entire regulatory structure of the FDA and its job to ensure safe medications is at stake. The justices this afternoon granted what's called an administrative stay, blocking the lower court orders until April 19. That's not very long, and it freezes the status quo, allowing the current drug regimen to remain in place while the other side has time to file a reply to the government's appeal. And what the court does after that, I have no idea. The government, in its brief today, stresses how complicated the issues are.

So the court, I think, basically has three choices - maybe more that I haven't thought of. One, it could hear the case now on an expedited basis, but there are problems with doing that. There's a very narrow window to hear this case. And we're about to have the last round of arguments at the court, and it's already way behind this term in producing opinions. If it doesn't want to do it in a rushed fashion, the court could grant a more permanent stay preserving the status quo and hear arguments in October at the start of the next term. And then there's a third thing the court could do. It could grant the stay and send the case back to the 5th Circuit so those judges can actually hear arguments in the case and render a formal decision instead of this interim opinion. And then the Supreme Court could hear it in October.

SUMMERS: So Nina, what do you think is going to happen?

TOTENBERG: (Laughter) I don't really know, but there are - I really don't think there are five votes on this court to uphold all of the problematic things in these lower court opinions.

SUMMERS: And, Nina, lastly, I do want to turn a minute to Justice Clarence Thomas and the newest revelations this week from the investigative outlet ProPublica that his friend, Harlan Crow, who's a Republican megadonor, paid more than $130,000 for a number of properties owned by Thomas and his relatives in Georgia. The justice did not disclose that. Will the court have anything to say about that?

TOTENBERG: You know, this all puts me in mind of the Abe Fortas affair in the late 1960s, when it came out that, in 1966, Justice Fortas took a secret retainer from a family foundation of Wall Street financier Louis Wolfson, who was a friend and former client of the justices, and he was - and who was subsequently imprisoned for securities violations. Facing the prospect of future investigations, Chief Justice Earl Warren basically told Fortas that he had to resign, and he did. The thing is I doubt that Chief Justice Roberts has that kind of power within this court.

SUMMERS: NPR's Nina Totenberg. Thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.