Supreme Court Allows Government to Enforce Abortion Pill Rule

January 13, 2021 by Dan McCue
Outside the U.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – The U.S. Supreme Court lifted a nationwide injunction Tuesday that had prevented the federal government from enforcing a rule that required women to see a health care professional in person before she’d be given access to a so-called abortion pill.

The Food and Drug Administration has argued for two decades that Mifeprez, a drug used during the first 10 weeks of pregnancy, must be given to a patient by a health care professional in a doctor’s office, clinic or hospital.

As part of the process, the patient must sign a form acknowledging she’s been counseled about the drug’s possible risks. However, once she’s fulfilled those obligations, she can effectively take the pill whenever she wants.

After the onset of the coronavirus pandemic last February, a group of doctors, led by the American College of Obstetricians and Gynecologists, sued the FDA, arguing that under the circumstances, requiring a woman to make an in-person visit to a health care provider exposed them to a heightened risk of infection.

U.S. District Judge Theodore Chuang sided with the doctors, ruling in July that enforcing the FDA rule during the pandemic would “place a substantial obstacle in the path of women seeking a medication abortion and that may delay or preclude a medication abortion and thus may necessitate a more invasive procedure.”

He further directed that the pills could simply be sent to patients by mail.

But on Tuesday, a majority on the Supreme Court said Chuang had gotten it wrong.

As is their custom on emergency applications, the majority did not explain its reasoning.

But in a concurring opinion, Chief Justice John Roberts Jr. said the fault in the lower court’s ruling lay not in its implications for a woman’s right to seek an abortion, but rather in its failure to pay sufficient deference to the “politically accountable branches” — the FDA — charged with regulating public health issues.

“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, referring to an opinion he wrote upholding state limits on attendance at church worship services.

“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,” he said.

The Mifeprez abortion pill is typically used to end early stage pregnancies. The American College of Obstetricians and Gynecologists has long argued that the pill is safe and does not require in-person dispensing to patients. 

In a dissent, Justice Sonia Sotomayor said the decision by the court’s conservative majority was a blow to the majority of women seeking an abortion during the first 10 weeks of pregnancy because they rely on the drug in question.

“The FDA’s policy imposes an unnecessary, unjustifiable, irrational, and undue burden on a women seeking abortion during the current pandemic,” Sotomayor wrote in an opinion joined by Justice Elena Kagan.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Sotomayor continued. “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 Stephen Breyer also noted his dissent, but did not join Sotomayor’s opinion. He said he would have left the hold in place on the rule’s enforcement.

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