SCOTUS Backs FDA Mifepristone Requirement
In a 6-3 split on ideological lines, the Supreme Court has granted an FDA request to reinstate a federal requirement that women being prescribed mifepristone for a medical abortion in the early stages of pregnancy have to obtain the pill in person from a healthcare provider and sign a form. SCOTUSblog reports that in 2020 a Maryland federal judge suspended the requirement because of the Covid-19 pandemic. The judge left the ruling in place after the high court last October told FDA to return to the lower court to seek narrower relief.
Observers say that FDA willingness to enforce the requirement could change in the incoming Biden administration.
The case arose when the American College of Obstetricians and Gynecologists went to court in 2020 arguing that requiring patients to visit their healthcare providers in the middle of a pandemic violated the Constitution by creating a substantial obstacle to receiving an abortion. Federal district judge Theodore Chuang agreed with the argument and issued the 7/2020 order prohibiting FDA from enforcing the in-person requirement any place in the U.S. until the pandemic is over.
After the 4th Circuit Court of Appeals declined the agency’s request to put Chuang’s ruling on hold pending its appeal, it went to the Supreme Court, which declined to resolve FDA’s request and told the agency to return to the lower court and ask Chuang to lift, modify, or freeze his order. Chuang denied the FDA request, noting that his order was not open-ended and applied only during the pandemic.
FDA returned to the Supreme Court with its same argument that the requirement did not impose a substantial obstacle on a woman’s ability to obtain an abortion since they could always get a surgical abortion.
The court’s order allows the agency to enforce the in-person requirement while continuing its appeal of Chuang’s order.
In a separate opinion, Chief Justice John Roberts said the court’s only question at this point in the proceedings was not whether the requirement makes it harder for women to obtain an abortion, but rather whether Chuang was correct in prohibiting the agency from enforcing the requirement based on his “own evaluation of the impact of the Covid-19 pandemic.”
In her dissent, Justice Sonia Sotomayor said the Centers for Disease Control has recommended that during the pandemic healthcare providers use telemedicine as much as possible but the federal government won’t allow it for women seeking medical abortions. She noted that women seeking abortions are already at greater risk for Covid complications because they are pregnant and because they are more likely to be women of color and to have low incomes.
Sotomayor sharply criticized FDA for saying that women could still obtain surgical abortions. “What a callous response,” she said, noting that surgical abortions are far more invasive and riskier than medication abortions.
Addressing Roberts’ view that the court should give deference to an agency’s reasoned decision, Sotomayor said there was no FDA reasoned decision to give deference to because the agency has not explained why it decided to enforce the mifepristone requirement during the pandemic while waiving similar requirements for other drugs.