Benten v. Kessler

Background

Leona Benten sought to import a single dose of RU-486, a drug not approved by the Food and Drug Administration, to induce a nonsurgical abortion. Federal officials at airport customs confiscated her supply. A federal trial court ordered the drug returned, but the appeals court put that order on hold while it considered the government’s appeal. Benten asked the Supreme Court to lift that appellate hold so she could get the drug returned immediately.

Reasoning

The Court denied the application to lift the stay. It found that Benten’s challenge — that an internal administrative document directing officials to seize the drug was adopted without required notice-and-comment procedures under the Administrative Procedure Act and FDA rules — did not show a strong likelihood of success on the merits. The majority therefore left the appeals court’s stay in place and did not order the drug returned while the appeal proceeds.

Real world impact

As a result, the federal seizure remains in effect for now and Benten does not get immediate access to the imported RU-486. The ruling is an emergency procedural decision, not a final judgment on whether the government’s seizure was lawful or whether the drug may be returned once the appeal is decided.

Dissents or concurrances

Justice Stevens dissented, arguing the seizure imposed an undue burden on Benten’s constitutionally protected choice and would have granted relief; Justice Blackmun also would have vacated the stay. The Court did not resolve that constitutional claim because it was not raised earlier in the case.