On Tuesday, The Supreme Court revived the federal mandate requiring medication abortion patients to pick up their mifepristone pill in person from a medical office or hospital, even when their consultation with their doctor is remote.
The suit was originally brought against the FDA by the American College of Obstetricians and Gynecologists (ACOG), the Council of University Chairs of Obstetrics and Gynecology (CUCOG), and SisterSong Women of Color Reproductive Justice Collective.
The order was unsigned, with three justices dissenting– Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Stephen Breyer. Chief Justice John Roberts emphasized the limited nature of this opinion, providing deference to the “experts” in political positions to assess public health. He emphasized that this ruling does not answer a question about whether or not the requirement imposes an undue burden on the right to abortion, but rather about the court’s role in evaluating the impact of COVID-19.
In her dissent, Justice Sotomayor expressed that abortion is treated unlike any other medical treatment and that this mandate puts people at risk.
“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “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.”
She continues, “of the over 20,000 FDA-approved drugs, mifepristone is the only one that the FDA requires to be picked up in person for patients to take at home.”
According to Judge Theodore D. Chuang of the Federal District Court in Maryland, the requirement to make an unnecessary trip to a medical office during a pandemic creates an undue burden on the constitutional right to abortion.
This particularly impacts poor people, many of whom are people of color, who may have limited access to transportation, may not be able to take time off work to make an extra trip to a clinic, where hours have been reduced because of the pandemic, and who are most likely to be impacted by coronavirus themselves.
Julia Kaye, a lawyer with the American Civil Liberties Union, said in a statement that “the court’s ruling rejects science, compassion and decades of legal precedent in service of the Trump administration’s anti-abortion agenda,” she said in a statement. “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.”
This ruling is the first about abortion that the Court has seen since Amy Coney Barret was joined the court and reinforced its conservative, anti-abortion majority.
Sources: New York Times 1/12/21; Supreme Court of the United States 1/12/21; CDC 7/24/20
