A divided Supreme Court on Tuesday allowed an appeal by Trump administration lawyers and reinstated a controversial abortion rule that requires women who want drugs to end an early pregnancy to go to a hospital or clinic to pick up the pills, despite the COVID-19 pandemic.
The justices, by a 6-3 vote, overturned a Maryland judge’s nationwide order that waived the in-person pickup rule on the grounds that it was medically unnecessary and posed a health risk to women during the pandemic. The six conservatives voted for the majority and the three liberals for the dissent.
The ruling is the court’s first on abortion since Judge Amy Coney Barrett joined in late October to fill the seat of the late Justice Ruth Bader Ginsburg, cementing conservative control over the court.
The new Biden administration may seek to change the rule, but it could be a long process.
A medical group representing 60,000 obstetricians and gynecologists sued last year to challenge the in-person pickup rule as absurd during the pandemic, saying a woman could see a doctor via telemedicine but still had to go to the hospital to collect the pills she could take home.
But the Trump administration has continued to fight relaxing the rule, albeit temporarily. Last month, Jeffrey B. Wall, the acting solicitor general, urged the court to intervene and insisted there was no evidence “that requiring in-person visits as part of the abortion would significantly impede women’s access to abortion during the pandemic.”
In response, the group of doctors said the administration chose the “deadliest phase” of the pandemic to try again to impose a travel requirement on pregnant women, even after relaxing similar rules for patients. looking for opioids like fentanyl.
After weeks of deliberation, the court on Tuesday issued a brief order granting the appeal.
Chief Justice John G. Roberts Jr. agreed with the result, writing, “Here, as in related contexts regarding government responses to the pandemic, my view is that the courts owe significant deference to politically accountable entities” , whether state governors or, in this case. example, officials of federal agencies. The other five conservative justices, including Barrett, did not write to explain their views.
Dissenting, Judge Sonia Sotomayor said the application of the rule was unreasonable. “FDA policy places an unnecessary, unjustifiable, irrational, and undue burden on women seeking abortions during the current pandemic, and because the government has failed to demonstrate irreparable harm from the injunction, I disagree” , she wrote. Judge Elena Kagan agreed; Judge Stephen G. Breyer said he too would have dismissed the appeal.
Tuesday’s order could signal a more concerted effort by the High Court to roll back abortion rights. Judges meet Friday to consider an appeal of a Mississippi law that would ban legal abortions after the 15th week of pregnancy.
The court’s position on abortion restrictions has been uncertain since Ginsburg’s death in September. In June, Ginsburg was part of a 5-4 majority that struck down a Louisiana law requiring doctors who perform abortions to have admitting privileges at a local hospital.
In this decision, Roberts joined the liberal justices on the basis of precedent; the court in 2016 struck down an almost identical Texas law. In her separate opinion, Roberts also cited the 1992 decision in which the court said abortion regulations can stand as long as they don’t put a “substantial obstacle” in the way of women seeking abortions.
Lawyers for the Justice Department relied on that reasoning when they first appealed the abortion drugs case in late August. They said long-standing rules on giving out abortion pills did not prevent women from getting an abortion.
Drugs are now the most commonly used method of early abortion.
“It is extremely safe and has been used by nearly 4 million women in the United States since 2000,” said Andrea Miller, president of the National Institute for Reproductive Health, which advocates for reproductive freedom.
The Conservatives, however, want to ban the pills. In September, Sen. Ted Cruz (R-Texas), joined by 20 other Senate Republicans, wrote a letter to Food and Drug Administration Commissioner Stephen Hahn and called for the abortion pill to be reclassified as a health hazard. public health.
“To protect vulnerable women and children, we urge the FDA to remove this deadly drug from the US market,” he wrote.
The Supreme Court was presented with very different data on the risks of medical abortions. The administration’s attorney said the abortion pill “poses a serious risk to up to 7% of patients.” But a group representing obstetricians and gynecologists responded that this “inflates the risks by a factor of 70. As the FDA reported in 2016, “major adverse events…are extremely rare, usually well below 0.1%”.
Since 2000, the FDA has authorized the use of two drugs – mifepristone and misoprostol – which are taken over alternate days to abort a pregnancy up to 10 weeks old. A doctor can prescribe the pills after consulting the woman and informing her of the potential risks.
A separate FDA rule states that the pills can only be dispensed in a hospital, clinic, or doctor’s office, although the woman is likely to take the pills at home.
In May, the American College of Obstetricians and Gynecologists filed a lawsuit, arguing there was no medical justification for requiring pregnant patients to travel to a hospital or doctor’s office to pick up abortion pills. Instead, they could be mailed to his home, they argued.
President Obama-appointed U.S. District Judge Theodore D. Chuang agreed and cited studies showing that most of those seeking abortions are low-income women of color. The majority of them have a child at home. For them, going to a clinic poses a risk to their health, the judge said, and he ruled that enforcing the in-person delivery rule during the pandemic puts an unconstitutional burden on their right to an abortion.
When the 4th Circuit Court of Appeals refused to lift the judge’s order, Wall sent an emergency appeal to the Supreme Court in the FDA v ACOG case. He urged judges to intervene to block “judicial review of an expert agency’s judgment”, and he argued that women remain free to obtain abortions.
“The Constitution does not guarantee access to the abortion method of choice where, as here, reasonable alternatives remain available,” Wall said. “Given that surgical methods of abortion remain widely available, enforcing long-standing safety requirements for medical abortion during the first 10 weeks of pregnancy does not constitute a substantial barrier to access to abortion, although the COVID-19 pandemic has made obtaining any method of abortion in person a bit more risky.
ACLU lawyers who represented the group of doctors blasted that argument because it would put patients at greater risk. They also said that abortion pills were particularly tightly regulated.
“Of the more than 20,000 drugs approved by the FDA, mifepristone is the only one that patients must pick up in person in a clinical setting, but are allowed to self-administer elsewhere, without supervision,” they said.
In response to the Supreme Court’s decision, attorney Julia Kaye of the ACLU Reproductive Freedom Project said, “The court’s decision rejects science, compassion, and decades of legal precedent in service of the anti-abortion agenda of the Trump administration. It is mind-boggling that the Trump administration’s top priority on his departure is to unnecessarily endanger even Continued people during this dark, pandemic winter — and scary that the Supreme Court allowed it.
“The Biden-Harris administration must right this wrong from day one and stand firm on its commitment to support both evidence-based regulations and reproductive freedom.”
The American Medical Assn., American Academy of Family Physicians and 15 other medical and healthcare groups submitted a friend of the court filing urging judges to block the FDA’s enforcement of the distribution rule in person because of the danger of spreading the coronavirus. Atty from California. General Xavier Becerra joined a group of 22 Democratic prosecutors to urge the court to reject the appeal.
“We are living through an unprecedented global pandemic, and instead of making care more accessible by taking precautions to reduce the spread of COVID, the Trump administration continues to push for anti-choice restrictions that put women at risk” , Becerra said.
In October, the court issued an interim order asking Chuang to review further government evidence. After that, the judge reaffirmed his nationwide injunction, which in turn prompted the Trump administration to renew its appeal.