Benten v. Kessler

Decision Date17 July 1992
Docket NumberNo. A-40.,A-40.
Citation505 U.S. 1084
PartiesBENTEN et al. v. KESSLER, COMMISSIONER, FOOD AND DRUG ADMINISTRATION, et al.
CourtU.S. Supreme Court

ON APPLICATION TO VACATE STAY

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 nonsurgical 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.

Justice Stevens, dissenting.

Whether an undue burden has been imposed on the exercise of a constitutional right depends on the relative significance of the burden, on the one hand, and the governmental interest at stake, on the other.

In this case, applicant Benten's constitutionally protected interest in liberty has two components — her decision to terminate the pregnancy and her decision...

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83 cases
  • Toxco Inc. v. Steven Chu
    • United States
    • U.S. District Court — District of Columbia
    • July 20, 2010
    ...is particularly important for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success on the merits, “there would be no justi......
  • Humane Society of U.S. v. Kempthorne
    • United States
    • U.S. District Court — District of Columbia
    • August 9, 2006
    ...of success on the merits." Barton v. Dist. of Columbia, 131 F.Supp.2d 236, 242 (D.D.C. 2001) (citing Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992)). If the movant fails to do so, "it would take a very strong showing with respect to the other preliminary inju......
  • Planned Parenthood Sw. Ohio Region v. DeWine
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 30, 2012
    ...to terminate the pregnancy and her decision concerning the method of doing so.” Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam) (Stevens, J., dissenting) (holding—less than one month after Casey—that a woman who had mifepristone pills confiscated ......
  • Santa Rita v. U.S. Dept. of Treasury
    • United States
    • U.S. District Court — District of Columbia
    • August 13, 2001
    ...of success on the merits." Barton v. Dist. of Columbia, 131 F.Supp.2d 236, 242 (D.D.C.2001) (citing Benten v. Kessler, 505 U.S. 1084, 1085, 112 S.Ct. 2929, 120 L.Ed.2d 926 (1992)). If the movant fails to do so, "it would take a very strong showing with respect to the other preliminary injun......
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2 books & journal articles
  • Gillian E. Metzger, Abortion, Equality, and Administrative Regulation
    • United States
    • Emory University School of Law Emory Law Journal No. 56-4, 2007
    • Invalid date
    ...existed that the FDA had violated the Administrative Procedure Act in issuing import alert on RU-486); see also Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (per curiam) (declining to vacate stay of preliminary injunction on grounds that no substantial likelihood of success existed). 58 Se......
  • Brief of Dr. Carhart et al. in Stenberg v. Carhart(*).
    • United States
    • Issues in Law & Medicine Vol. 16 No. 1, June 2000
    • June 22, 2000
    ...in "both assisting the woman in the decisionmaking process and implementing her decision should she choose abortion"); Benten v. Kessler, 505 U.S. 1084, 1085 (1992) (Stevens, J., dissenting) (a woman's "constitutionally protected interest in liberty has two components -- her decision to ter......

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