Benten v. Kessler, 505 U.S. 1084 (1992)

Benten v. Kessler


No. A-40


Decided July 17, 1992
505 U.S. 1084

ON APPLICATION TO VACATE STAY

Syllabus

Respondent federal officials confiscated applicant Benten’s supply of RU-486, a drug not approved by the Food and Drug Administration (FDA), at airport customs as she tried to import a single dosage in order to induce a nonsurgical abortion. The District Court entered a preliminary injunction compelling the drug’s immediate return to Benten, which the Court of Appeals stayed pending an appeal.

Held: The application to vacate the stay is denied. Applicants have failed to demonstrate a substantial likelihood of success on the merits of their claim that Benten is entitled to the drug’s return on the ground that the administrative document instructing officials to seize the drug was promulgated without notice and comment procedures assertedly required by both the Administrative Procedure Act and FDA regulations. The Court expresses no opinion on the merits of the claim that holding the drug would constitute an undue burden upon Benten’s constitutionally protected abortion rights, since that claim was addressed neither by the courts below nor by applicants’ filings in this Court.

Application denied.