On Tuesday, the Supreme Court granted the Trump administration’s request to reinstate the rule requiring that patients pick up abortion pills in-person from a medical facility, rather than being able to receive them by mail or delivery.
Although typically the FDA mandates that the drug in question, mifepristone, can only be collected in person, that rule was suspended by U.S. District Judge Theodore Chuang of Maryland back in July due to the health and safety risks of the coronavirus pandemic. At the time, Judge Chuang wrote:
“By causing certain patients to decide between forgoing or substantially delaying abortion care, or risking exposure to COVID-19 for themselves, their children, and family members, the In-Person Requirements present a serious burden to many abortion patients.”
In mid-December, Judge Chuang refused the administration’s request to reinstate the rule, arguing that even the progress with vaccines “has not meaningfully altered the current health risks and obstacles to women seeking medication abortions.” He also added that the administration had been unable to prove that its temporary inability to enforce the FDA rule had harmed patients or the government itself.
The Supreme Court’s 6-3 decision was split between the conservative majority and the liberal minority, with the three liberal justices objecting to the ruling.
In her dissenting opinion, Justice Sonia Sotomayor wrote:
“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks.
One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times.”
Justice Sotomayor was joined by Justice Elena Kagan in her opinion. Justice Stephen G. Breyer also dissented, but did not join Sotomayor’s opinion.
The conservative majority did not explain the reasoning behind their ruling (though I’m sure we don’t have to try hard to guess), but in a separate statement, Chief Justice John G. Roberts Jr. wrote that his decision was made out of respect for government experts.
“My view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.’
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.”
I would personally love to speak to the public health experts who are in support of patients making unnecessary visits to medical facilities during a global pandemic solely to pick up a pill that’s typically taken at home.