SUPREME COURT STAYS 5TH CIRCUIT’S BLOCK ON TELEHEALTH MIFEPRISTONE BY MAIL
In a move that I’m sure will surprise many of you, the Supreme Court JUST *stayed* (paused) the 5th Circuit’s order blocking the availability of mifepristone by telehealth mail order.
The entire order entry at the Supreme Court says:
“Order entered by Justice Alito: Upon consideration of the application of counsel for the applicant, it is ordered that the May 1, 2026 order of the United States Court of Appeals for the Fifth Circuit, case No. 26-30203, is hereby administratively stayed until 5 p.m. (EDT) on Monday, May 11, 2026. It is further ordered that a response to the application be filed on or before Thursday, May 7, 2026, by 5 p.m. (EDT).”
Here’s what this means:
On Saturday an application for the stay was presented to Justice Alito by one of the defendants in the case, Danco Labs (they make mifepristone).
Today the stay was granted until next Monday (so it is stayed for a week). The order also says that the plaintiffs (State of Louisiana) must *respond* to Danco’s application by this Thursday.
*Also* today a whole bunch of states filed an amicus brief with the Supreme Court (that 28-page brief is included for Notes from the Front members), detailing how safe and effective mifepristone is and, and this is important, how the 5th Circuit’s order “interferes with these states’ sovereign authority to promote access to reproductive healthcare for their residents”; in other words they are pointing out that the nationwide nature of the 5th Circuit’s decision (because it invalidated a federal action) is a problem.
Now, I want to point something out to you: Do you see the part of the very short order from Justice Alito that says that the 5th Circuit’s decision is “administratively stayed until 5 p.m. (EDT) on Monday, May 11, 2026”?
THIS IS THE THING THAT EVERYBODY IS CALLING THE “SHADOW DOCKET”!
So, first, as I have said repeatedly, until I am blue in the face, *there is no shadow docket*! That was term widely promoted by author Stephen Vladeck to promote his book in 2023; he made up the term and used it in the title of his book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” He single-handedly conjured up a vision of a sinister Supreme Court and boyhowdy did people run with it. I don’t care that even the news is using the term, heck I don’t even care that one or more of our own Supreme Court justices have used the term – it’s a catchy shorthand to evoke a particular image and emotion – *just like “Antifa”*. There is no Antifa, and there is no shadow docket.
There *is* an “emergency docket”, and this is it.
And second, as I have also said repeatedly, the emergency docket is the docket where they do things like administrative stays. ONLY administrative, not substantive, not merits-based.
Third, orders on the emergency docket can *and do* cut both ways. But nobody screams louder than the left when it doesn’t cut their way. When it *does* cut their way, such as this order that I’m explaining to you right now, watch how much more muted the news from the left will be. BOTH THE RIGHT AND THE LEFT WANT YOU WORKED UP, WORRIED, STRESSED, AND SCARED (for different reasons, but they both want it).
Remember, the law is neutral – it’s the application of the law that is not. And the sky is not falling, the sky just is.
Notes from the Front members: The amicus brief is in your inbox now!
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P.S. If you actually read all the way to the bottom please leave a comment that includes the words “amicus brief”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering which amicus brief everyone is talking about! ;~)
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