Justices Reinstate Medication Abortion Rule Lifted During Pandemic

WASHINGTON (CN) — The Supreme Court on Tuesday granted the Trump administration's request to enforce a rule requiring women to visit a medical center to get an abortion drug, after a lower court suspended the regulation in light of the Covid-19 pandemic.

In a brief concurrence on the court's split decision granting the administration's application for a stay of a Maryland federal judge's decision this summer that allowed women to seek abortion pills without visting a clinic, Chief Justice John Roberts wrote the matter before the court was not whether the requirements for dispersing mifepristone and misoprostol — drugs that induced early miscarriages in expectant mothers — imposed an undue burden on women seeking those procedures.

Roberts said the question was with whether lower courts properly ordered the Food and Drug Administration to lift consultation requirements because of the Covid-19 pandemic.

“Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health,’” Roberts wrote. “In light of those considerations, I do not see a sufficient basis here for the District Court to compel the FDA to alter the regimen for medical abortion.”

The court’s more liberal justices — Justices Stephen Breyer, Elena Kagan and Sonya Sotomayor — signaled they would have denied the Trump administration’s request. In a 12-page dissent, Sotomayor noted the FDA had singled out patients seeking to undergo abortions by taking both drugs.

“After the Secretary of Health and Human Services (HHS) declared the Covid-19 pandemic a public health emergency, the FDA and HHS waived in-person requirements for several other drugs, including certain controlled substances, but not for mifepristone,” Sotomayor wrote. “As a result, Government policy now permits patients to receive prescriptions for powerful opioids without leaving home, yet still requires women to travel to a doctor’s office to pick up mifepristone, only to turn around, go home, and ingest it without supervision.”

The Centers for Disease Control and Prevention, Sotomayor noted, had pontificated at length about the risks of in-person health care during the pandemic. The government had recognized those risks for the majority of Americans but “refused to extend the same grace to women seeking medication abortions,” she wrote.

Pregnancy puts women at an increased risk for severe consequences as a result of Covid-19 infection. More than half of women who have abortions are women of color, Sotomayor noted, and they are more than three times as likely to die from Covid-19 than white Americans.

Three-quarters of abortion patients have low incomes, which makes them more likely to rely on public transportation when going to in-person medical assessments for mifepristone, Sotomayor wrote. Those same individuals are also likely to live in intergenerational housing — risking the exposure of their elderly loved ones to the virus, she noted.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Sotomayor wrote. “Like many of those laws, maintaining the FDA’s in-person requirements for mifepristone during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose. One can only hope that the Government will reconsider and exhibit grater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times.”

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