BENTEN et al. v. KESSLER, COMMISSIONER, FOOD AND DRUG ADMINISTRATION, et al.
No. A-40.
Decided July 17, 1992
Per Curiam.
Petitioner Leona Benten wants to use RU-486, a drug not approved by the Food and Drug Administration (FDA), in order to induce a nonsurgieal abortion. She tried to import a single dosage of the drug for that purpose, but respondent federal officials confiscated her supply at airport customs. Petitioners filed suit in the District Court for the Eastern District of New York in order to compel the immediate return of the drug to Benten. The District Court entered a preliminary injunction granting this remedy. Respondents appealed, and the Court of Appeals for the Second Circuit stayed the injunction pending the appeal. Petitioners have filed an application to vacate the Court of Appeals’ stay. We deny the application.
Petitioners contend that Benten is entitled to the return of her RU-486 because an administrative document instructing enforcement officials to seize that drug was promulgated without notice-and-comment procedures assertedly required under both the Administrative Procedure Act and FDA regulations. We conclude that petitioners have failed to demonstrate a substantial likelihood of success on the merits of these claims. Justice Stevens contends that the Government’s holding the drug would constitute an undue burden upon Benten’s constitutionally protected abortion rights. See post this page and 1086. We express no view on the merits of this assertion. The claim under which Justice Stevens would grant relief was addressed neither by the District Court nor by the Court of Appeals nor by petitioners’ filings in this Court. Accordingly, we conclude that it is not properly before us.
Petitioners’ application- to vacate the Court of Appeals’ July 15, 1992, stay pending respondents’ appeal, presented to Justice Thomas and by him referred to the Court, is denied.
It is so ordered.
Justice Blackmun dissents and would grant the application to vacate the stay.
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