USCA4 Appeal: 20-1824 Doc: 39 Filed: 10/08/2020 Pg: 1 of 5
`Case 8:20-cv-01320-TDC Document 132 Filed 10/09/20 Page 1 of 5
`Cite as: 592 U. S. ____ (2020)
`ALITO, J., dissenting
`No. 20A34
`[October 8, 2020]
` 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 Govern-
`ment 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 injunc-
`tion, a more comprehensive record would aid this Court’s
`review. The Court will therefore hold the Government’s ap-
`plication 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 Government has filed an emergency application to
`stay an injunction against enforcement of a longstanding


`USCA4 Appeal: 20-1824 Doc: 39 Filed: 10/08/2020 Pg: 2 of 5
`Case 8:20-cv-01320-TDC Document 132 Filed 10/09/20 Page 2 of 5
`ALITO, J., dissenting
`drug-safety rule issued by the Food and Drug Administra-
`tion (FDA). Six weeks have passed since the application
`was submitted, but the Court refuses to rule. Instead, it
`defers any action until the Government moves in the Dis-
`trict Court to modify the injunction and the District Court
`rules on that motion, a process that may take another six
`weeks or more.
` There is no legally sound reason for this unusual disposi-
`tion. The only justification even hinted by the Court is the
`possibility that modification of the injunction may be re-
`quired due to changes in the severity of the problems caused
`by the COVID–19 pandemic, but that possibility does not
`justify the Court’s refusal to rule. Indeed, for all practical
`purposes, there is little difference between what the Court
`has done and an express denial of the Government’s appli-
`cation. In both situations, the FDA rule may not be en-
`forced, and in both situations, the Government is able to
`move the District Court to modify the injunction based on
`changed circumstances. See Horne v. Flores, 557 U. S. 433,
`447 (2009) (Federal Rule of Civil Procedure 60(b)(5) “pro-
`vides a means by which a party can ask a court to modify or
`vacate a judgment or order if ‘a significant change . . . in
`factual conditions’ . . . renders continued enforcement ‘det-
`rimental to the public interest’ ” (quoting Rufo v. Inmates of
`Suffolk County Jail, 502 U. S. 367, 384 (1992))).
` There is, however, one difference (but not a legally signif-
`icant one) between what the Court has done and the express
`denial of the Government’s application. Expressly denying
`a stay would highlight the inconsistency in the Court’s rul-
`ings on COVID–19-related public safety measures. In re-
`sponse to the pandemic, state and local officials have im-
`posed unprecedented restrictions on personal liberty,
`including severe limitations on First Amendment rights.
`Officials have drastically limited speech, banning or re-
`stricting public speeches, lectures, meetings, and rallies.


`USCA4 Appeal: 20-1824 Doc: 39 Filed: 10/08/2020 Pg: 3 of 5
`Case 8:20-cv-01320-TDC Document 132 Filed 10/09/20 Page 3 of 5
`Cite as: 592 U. S. ____ (2020)
`ALITO, J., dissenting
`The free exercise of religion also has suffered previously un-
`imaginable restraints, and this Court has stood by while
`that has occurred.
` In South Bay United Pentecostal Church v. Newsom, 590
`U. S. ___ (2020), this hands-off approach was defended on
`the following ground:
`“Our Constitution principally entrusts ‘the safety and
`the health of the people’ to the politically accountable
`officials of the States ‘to guard and protect.’ Jacobson
`v. Massachusetts, 197 U. S. 11, 38 (1905). When those
`officials ‘undertake to act in areas fraught with medical
`and scientific uncertainties,’ their latitude ‘must be es-
`pecially broad.’ Marshall v. United States, 414 U. S.
`417, 427 (1974). Where those broad limits are not ex-
`ceeded, they should not be subject to second-guessing
`by an ‘unelected federal judiciary,’ which lacks the
`background, competence, and expertise to assess public
`health and is not accountable to the people. See Garcia
`v. San Antonio Metropolitan Transit Authority, 469
`U. S. 528, 545 (1985).” Id., at ___ (ROBERTS, C. J., con-
`curring in denial of application for injunctive relief )
`(slip op., at 2) (alterations omitted).
` The extent of this deference was illustrated weeks later
`when the Court deferred to the judgment of the Governor of
`Nevada that attendance at worship services presented a
`greater threat to public health than engaging in the diver-
`sions offered by the State’s casinos. Calvary Chapel Dayton
`Valley v. Sisolak, ante, p. ___. The possibility that this du-
`bious conclusion might have been based less on science than
`on the influence of the State’s powerful gaming industry
`and its employees was not enough to move the Court. Near-
`total deference was the rule of the day.
` In the present case, however, the District Court took a
`strikingly different approach. While COVID–19 has pro-
`vided the ground for restrictions on First Amendment


`USCA4 Appeal: 20-1824 Doc: 39 Filed: 10/08/2020 Pg: 4 of 5
`Case 8:20-cv-01320-TDC Document 132 Filed 10/09/20 Page 4 of 5
`ALITO, J., dissenting
`rights, the District Court saw the pandemic as a ground for
`expanding the abortion right recognized in Roe v. Wade, 410
`U. S. 113 (1973). At issue is a requirement adopted by the
`FDA for the purpose of protecting the health of women who
`wish to obtain an abortion by ingesting certain medications,
`specifically, mifepristone and misoprostol. Under that re-
`quirement, a woman must receive a mifepristone tablet in
`person at a hospital, clinic, or medical office. Electronic
`Court Filing in No. 8:20–cv–01320, Doc. 1–4 (D Md., May
`27, 2020), p. 3. The FDA first adopted the requirement in
`2000, and then included it in a package of safety require-
`ments under express statutory authority in 2007. See 21
`U. S. C. §355–1(f )(3)(C). Over the course of four presiden-
`tial administrations, the FDA has enforced this require-
`ment and has not found it appropriate to remove it. During
`the COVID–19 pandemic, the FDA suspended in-person
`dispensing requirements for some drugs, but it evidently
`decided that the mifepristone requirement should remain
`in force.
` Nevertheless, a District Court Judge in Maryland took it
`upon himself to overrule the FDA on a question of drug
`safety. Disregarding THE CHIEF JUSTICE’s admonition
`against judicial second-guessing of officials with public
`health responsibilities, the judge concluded that requiring
`women seeking a medication abortion to pick up mifepris-
`tone in person during the COVID–19 pandemic constitutes
`an “undue burden” on the abortion right, and he therefore
`issued a nationwide injunction against enforcement of the
`FDA’s requirement. The judge apparently was not troubled
`by the fact that those responsible for public health in Mar-
`yland thought it safe for women (and men) to leave the
`house and engage in numerous activities that present at
`least as much risk as visiting a clinic—such as indoor res-
`taurant dining, visiting hair salons and barber shops, all
`sorts of retail establishments, gyms and other indoor exer-
`cise facilities, nail salons, youth sports events, and, of


`USCA4 Appeal: 20-1824 Doc: 39 Filed: 10/08/2020 Pg: 5 of 5
`Case 8:20-cv-01320-TDC Document 132 Filed 10/09/20 Page 5 of 5
`Cite as: 592 U. S. ____ (2020)
`ALITO, J., dissenting
`course, the State’s casinos.* And the judge made the in-
`junction applicable throughout the country, including in lo-
`cales with very low infection rates and limited COVID–19
` Under the approach recently taken by the Court in cases
`involving restrictions on First Amendment rights, the
`proper disposition of the Government’s stay application
`should be clear: grant. But the Court is not willing to do
`that. Nor is it willing to deny the application. I see no rea-
`son for refusing to rule.
` This case presents important issues that richly merit re-
`view. The District Court’s decision, if reviewed, is likely to
`be reversed. And if the FDA is right in its assessment of
`mifepristone, non-enforcement of the requirement risks ir-
`reparable harm. A stay is amply warranted.
` For these reasons, I respectfully dissent.
`* See, e.g., Governor Hogan Announces Next Stage Two Reopenings,
`Including Indoor Dining and Outdoor Amusements (June 10, 2020),
`Governor Hogan Announces Beginning of Stage Two of Maryland’s
`COVID–19 Recovery, Safe and Gradual Reopening of Workplaces and
`Businesses (June 3, 2020),

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