Understanding Justice Alito’s Dissent to the Abortion Pill Ruling

Justices Samuel Alito and Clarence Thomas were the sole dissenters in the US Supreme Court’s ruling last Friday, temporarily overturning a Texas federal district court ruling that the FDA had violated it’s own rules when it approved the abortion pill in 2000.

As a result of this latest ruling from the Supreme Court, the abortion pill, the preferred method for for killing more than 50% of America’s preborn babies, is still available with little to no limits in states that allow chemical abortions.

Alito: Would Government Even Obey a Legitimate Ruling?

Immediately upon release of the decision from SCOTUS, Justice Alito began trending on social media for his assertion in the dissent that the government did little to dispel the multitudinous calls from high ranking politicians for the FDA to ignore the lower federal court ruling.

But Justice Alito was justified in his comments, and absolutely correct. Prominent pro-abortion political figures, including Democrat (Alexandria Ocasio-Cortez, D – NY) and Republican (Nancy Mace, R – SC) members of the House of Representatives and US Senator Ron Wyden (D – OR), backed up by legal talking heads prominently featured by the legacy media, called for the FDA to ignore the federal district court ruling.

In fact, even the Secretary of Health and Human Services, Xavier Becerra, who oversees the FDA, responded to a direct question about the abortion Texas pill ruling by stating that “all options were on the table”, including ignoring the court order.

Justice Alito’s short dissent focused on the fact that the Biden administration did not show that there was any real harm to the abortion pill manufacturers (Danco Labs) after the Fifth Circuit Court of Appeals’ more limited temporary order restricting just the mail-order deregulation of the abortion pill.

The reason given by Justice Alito as to why there would be no harm to Danco Labs, is that the pro-abortion Biden administration made clear that it would never choose to exercise its regulatory discretion to prohibit or even limit the abortion pill. Absent any threat of enforcement from the FDA, there could have been no harm to the abortion pill manufacturers, argued Justice Alito.

Shadow Docket

The “shadow docket” is a term used to refer to opinions of the US Supreme Court, usually on procedural matters, that are made quickly without the traditional process of briefing and oral arguments.

As pointed out by Professor Jonathan Turley in his excellent analysis of Justice Alito’s dissent, the shadow docket has been demonized by the left as “wildly undemocratic” and as “making decisions in the middle of the night with ‘zero transparency or explanation.”

In an unusual move, Justice Alito called out liberal Justices Kagan and Sotomayor, and conservative Coney Barret, as having criticized the “shadow docket” in the recent past, only to rule in the abortion pill case using the same shadow docket they recently criticized.

It is unclear how the court will rule as the case moves on in the appeal process in the Fifth Circuit court of appeals. However, the fact that the Supreme Court decided to ignore the more limited temporary order of the fifth circuit and instead completely blocked enforcement of the Texas District Court can not be considered a good sign for pro-lifers.

The case will be heard in the Fifth Circuit in oral arguments on Wed., May 17 at 2 p.m. EST.

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