WASHINGTON -- Supreme Court Associate Justice Clarence Thomas, has scheduled an expedited hearing today in the case of a pregnant woman who has challenged the government's seizure of an unapproved abortion drug she had tried to bring into the United States.
Justice Thomas asked the Justice Department yesterday to submit arguments today explaining why the government should keep the seized drug, RU486. The woman obtained it in Europe, where it is legal.
A speedy hearing is needed to ensure there will be time for further legal proceedings before Saturday, the last day the woman should take the pills to be assured they will end her pregnancy, said her doctor.
On Tuesday, Federal District Judge Charles P. Sifton, in Brooklyn, N.Y., ruled that the government had acted illegally when agents of the U.S. Customs Office and the Food and Drug Administration confiscated the pills from the woman, Leona Benten, on July 1 at Kennedy International Airport after a flight from London.
Judge Sifton ruled that the government must return the pills immediately. But he addressed the issue for this case alone, leaving open the question of whether all women have the right to import RU486.
Later Tuesday, however, the 2nd U.S. Circuit Court of Appeals in Manhattan blocked Judge Sifton's order.
Yesterday, Ms. Benten and her lawyers from the Center for Reproductive Law and Policy in New York filed an emergency request with the Supreme Court to uphold Judge Sifton and erase the appellate court's stay. Justice Thomas is the member of the court assigned to hear such requests from the 2nd Circuit.
Legal experts said Justice Thomas will have to consider several points: which side is likely to be injured most if the pills are not returned; whether the woman has a reasonable chance of winning her case if a full argument on the merits occurs; what the other options for the parties are; and whether the district court should interfere with government activity.
Food and Drug Administration officials said in interviews that the case raises the issue of whether the agency has broad discretion to regulate the importation of unapproved drugs. At the least, a decision against the agency would make it necessary to begin elaborate administrative work to justify the ban on the drug.