The U.S. Supreme Court on Tuesday granted a Trump administration request to reinstate restrictions for patients seeking to obtain a drug used to terminate early pregnancies.
The decision, issued over a dissent from the court's liberal judges, reinstates a requirement for patients to pick up the drug, mifepristone, in person. Three lower courts had blocked the Food and Drug Administration's in-person pick-up requirement for mifepristone during the coronavirus pandemic, citing the risks of contracting COVID-19 at a doctor's office or a hospital.
It's the first abortion-related decision since last year's swearing in of Justice Amy Coney Barrett, whose presence on the high court bench ensured a new conservative majority. Abortion-rights advocates have been fearful of what a conservative majority could do to chip away at legal protections for abortion.
Julia Kaye, staff attorney at the American Civil Liberties Union Reproductive Freedom Project, called the court's decision "chilling" and one that "needlessly" endangers "even more people during this dark pandemic winter."
She added that people of color, like Black and Latinx patients, are at particular risk for health risks posed by COVID-19. Requiring them to go to a doctor's office in person to pick up the drug threatens the health and lives of those patients, she said.
A spokeswoman for the anti-abortion-rights group Susan B. Anthony List called the decision a "major" victory. The organization believes abortion rights advocates "sought to exploit the COVID-19 pandemic to push abortion by mail, promoting DIY abortion at home, upping the risk of serious complications."
The case
The ACLU sued the federal government to challenge the FDA rule. Their case was limited and focused solely on ending that in-person requirement during the pandemic.
Chief Justice John Roberts, writing for the majority in the 5-4 decision, said the court was not faced with deciding whether "the requirements for dispensing mifepristone impose an undue burden on a woman's right to an abortion as a general matter."
Rather, judges were tasked with weighing in on whether the lower courts properly ordered the FDA to lift requirements for in-person collection of mifepristone because of the risks posed by the pandemic, he said.
"I do not see a sufficient basis here for the District Court to compel the FDA to alter the regimen for medical abortion," Roberts said.
The drug mifepristone was approved by the FDA 20 years ago for use in medical abortions in early pregnancy. It's also used to help manage miscarriages for some women trying to avoid surgery.
Medical abortions involves taking two prescription drugs, mifepristone and misoprostol, which together induce the equivalent of an early miscarriage.
Telemedicine is the only way many women who live in remote areas of the U.S. can access the abortion pills. A handful of states have only one clinic that provides abortions, forcing patients to drive hundreds of miles to obtain one.
But the Guttmacher Institute, which supports abortion rights, says 18 states prohibit doctors from prescribing abortion pills remotely, adding further obstacles for patients in obtaining them.
Justice Sonia Sotomayor, in her dissent, wrote, "This country's laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks."
The FDA's rules "imposes an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose," she wrote. "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."
Abortion-rights advocates are holding out hope the administration of President-elect Joe Biden could walk back the FDA's requirements to take the pill in person.
Kaye with the ACLU said, "The Biden-Harris administration must right this wrong on day one and hold firm to its commitment to support both evidence-based regulations and reproductive freedom."
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