Benten v. Kessler, No. A-40.

CourtUnited States Supreme Court
Writing for the CourtPer Curiam
Citation505 U.S. 1084
PartiesBENTEN et al. v. KESSLER, COMMISSIONER, FOOD AND DRUG ADMINISTRATION, et al.
Decision Date17 July 1992
Docket NumberNo. A-40.

505 U.S. 1084

BENTEN et al.
v.
KESSLER, COMMISSIONER, FOOD AND DRUG ADMINISTRATION, et al.

No. A-40.

United States Supreme Court.

Decided July 17, 1992.


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.

505 U.S. 1085

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...

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83 practice notes
  • Humane Society of U.S. v. Kempthorne, No. CIV.A. 06-1279(CKK).
    • United States
    • U.S. District Court — District of Columbia
    • August 9, 2006
    ...likelihood 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 preli......
  • Toxco Inc. v. Steven Chu, Civil Action No.: 09-1925.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 20, 2010
    ...1 (2008)). It 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 wou......
  • Planned Parenthood Sw. Ohio Region v. DeWine, No. 11–4062.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 30, 2012
    ...has “two components—her decision 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 ha......
  • Santa Rita v. U.S. Dept. of Treasury, No. CIV.A. 01-1573(CKK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 13, 2001
    ...likelihood 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 prelim......
  • Request a trial to view additional results
83 cases
  • Humane Society of U.S. v. Kempthorne, No. CIV.A. 06-1279(CKK).
    • United States
    • U.S. District Court — District of Columbia
    • August 9, 2006
    ...likelihood 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 preli......
  • Toxco Inc. v. Steven Chu, Civil Action No.: 09-1925.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 20, 2010
    ...1 (2008)). It 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 wou......
  • Planned Parenthood Sw. Ohio Region v. DeWine, No. 11–4062.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 30, 2012
    ...has “two components—her decision 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 ha......
  • Santa Rita v. U.S. Dept. of Treasury, No. CIV.A. 01-1573(CKK).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 13, 2001
    ...likelihood 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 prelim......
  • Request a trial to view additional results

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