Cite as: 505 U. S. 1084 (1992)
Stevens, J., dissenting
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 concerning the method of doing so. The Government does not assert any interest in, or right to, burden the former decision. The Government does, however, assert an interest in the latter
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