Page:Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration (5th Cir. Aug. 16, 2023).pdf/56

 It is a well-established maxim that “equity regards substance rather than form.” Dobbs, 1 Law of Remedies 83 (2d ed. 1993). This means, among other things, that courts exercising equitable power should account for the real, boots-on-the-ground circumstances, not those supposed or theorized by the parties. As Pomeroy has explained: "Equity always attempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will never suffer the mere appearance and external form to conceal the true purposes, objects, and consequences of a transaction."

Pomeroy, II Equity Jurisprudence § 378 (5th ed. 1941); see, e.g., Freedom from Religion Found., 58 F.4th at 837. Applying this principle, we must take into consideration the fact that the district court’s stay order will likely not go into effect for several months, if not more than a year.

The Supreme Court’s stay alleviates (or at least greatly reduces) any possible harm to Danco because it establishes a substantial window to prepare to comply with the district court’s stay order, as modified by this court. The soonest the district court’s stay order could go into effect would be if neither party filed a petition for certiorari, and the deadline to do so is ninety days after the entry of this court’s judgment. Sup. Ct. R. 13. Alternatively, if either of the Defendants seek certiorari, the stay will remain in effect at least until the denial of that petition, should it be denied. But even that would likely require a minimum of six months for briefing by the parties and disposition by the Supreme Court. And if the Court grants the writ, that would extend the stay for upwards of another year. Either way, Danco will have “months” of time needed to arrange for mifepristone to be distributed under the 2011 REMS and prevent any “loss of access.”

Other public-interest considerations merit discussion. Various amici assert that eliminating access to mifepristone, even temporarily, may pose