This afternoon, Justice Alito extended the administrative stays pausing the order of the U.S. Court of Appeals for the Fifth Circuit halting the prescription of the abortion medication mifepristone via telemedicine. The new deadline is Thursday (when the Court is also expected to issue one or more opinions in argued cases).
What explains the extension? The justices are presumably deciding what to do about the stay applications. One possibility is that they will either grant or deny the stay requests, with one or more justices filing opinions. Another possibility is they are considering whether to grant certiorari before judgement to consider the threshold standing question, as the Fifth Circuit's order created a split with the U.S. Court of Appeals for the Ninth Circuit.
One factor potentially complicating the Court's consideration of these stay requests is the failure of the Food and Drug Administration to file anything with the Court. This complicates things because in the usual course the federal government is among those asking the Court to intervene when a lower court blocks a federal action. The Court generally assumes that orders blocking federal action cause irreparable harm to the federal government, and such harm is generally a threshold consideration for the Court to consider providing extraordinary relief. But here the FDA (or, rather, the Solicitor General) is silent, suggesting that the federal government is not too concerned about the Fifth Circuit's order. It also means there is no thumb on the scale when the justices balance the remaining equities.
