In its first abortion-related decision with a newly cemented majority of conservative jurists, the U.S. Supreme Court in a 6-3 decision on Tuesday stayed an injunction of a Food and Drug Administration regulation requiring women seeking the abortion pill to pick up the drug in person rather than receiving it in the mail.
The injunction of the rule, issued by a Maryland district court, prevented the FDA from enforcing the in-person dispensation requirement for mifepristone, used to end an early pregnancy or manage a miscarriage, for the duration of the COVID-19 public health emergency. The American College of Obstetricians and Gynecologists (ACOG) challenged the rule, arguing it placed an undue burden on women’s abortion rights during the pandemic.
In October, prior to the swearing in of Justice Amy Coney Barrett, the eight-member high court declined to grant the stay in a 6-2 decision, stating it would hold the federal government’s emergency stay application in abeyance until the district court could consider a motion to modify the injunction.
With all nine seats on the bench now filled, the Supreme Court’s Tuesday order stays the injunction of the rule pending appeal in the Fourth Circuit.
In a concurrence, Chief Justice John Roberts wrote that courts owe public health experts “significant deference” in responding to the pandemic, and 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.”
Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a 12-page dissent to state that the FDA rule “imposes an unnecessary, unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic.” She pointed out that the FDA waived in-person pickup requirements for several other drugs, including certain controlled substances, but not for the abortion pill.
“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,” Sotomayor wrote.
The dissent also stated that “pregnancy itself puts a woman at increased risk for severe consequences from COVID-19” and that more than half of women who have abortions are women of color, noting that the COVID-19 mortality rate is three times higher for Black and Hispanic patients than for white patients.
Julia Kaye, a staff attorney at the ACLU Reproductive Freedom Project who represented the ACOG, said in a statement that the decision “rejects science, compassion, and decades of legal precedent in service of the Trump administration’s anti-abortion agenda.”
“It is mind-boggling that the Trump administration’s top priority on its way out the door is to needlessly endanger even more people during this dark pandemic winter — and chilling that the Supreme Court allowed it,” Kaye said.
The FDA could not be immediately reached for comment on the decision.
The case is Food and Drug Administration v. American College of Obstetricians and Gynecologists, case number 20A34, in the Supreme Court of the United States.
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