The Supreme Court on Tuesday night granted the Trump administration’s request to reinstate federal rules requiring people seeking medication abortions to obtain the pills in-person from a medical provider.
The court’s 6-3 decision along ideological lines halted a lower court ruling that waived the Food and Drug Administration rules to allow abortion pills to be distributed by mail during the Covid-19 pandemic.
The ruling was the court’s first major action on abortion since Senate Republicans fast-tracked the confirmation of Justice Amy Coney Barrett to the seat left vacant by the death of liberal Justice Ruth Bader Ginsburg last year. In a brief opinion, Chief Justice John Roberts asserted that the case wasn’t about abortion, but rather whether courts could substitute judgment of federal officials at the FDA.
The court’s three liberal justices said they would have denied the Trump administration’s request for a stay. In a dissenting opinion, Justices Sonia Sotomayor and Elena Kagan said federal government rules restricting dispensation of the abortion pill, mifepristone, are medically unnecessary and present “an unnecessary, unjustifiable, irrational, and undue burden” on women.
“Government policy now permits patients to receive prescriptions for powerful opioids without leaving home, yet still requires women to travel to a doctor’s office to pick up mifepristone, only to turn around, go home, and ingest it without supervision,” they wrote. They also said the Trump administration failed to prove how it would be harmed by letting mail delivery of the pills to continue while courts weighed the merits of the case.
A short-handed Supreme Court had declined to intervene in the same case in October, allowing abortion clinics to continue dispensing the pills through telemedicine and through the mail, which they say has kept patients and staff safer during the pandemic.
The Trump administration asked the Supreme Court to reconsider its request after Barrett joined the bench. The administration said continuing to enforce longstanding FDA rules on mifepristone, which was approved 20 years ago, “does not create a substantial burden on abortion access.”
The American Civil Liberties Union, which represented abortion clinics challenging the FDA rules, said in a statement that the court’s decision “exposes patients to needless COVID-19 risks” and called on the incoming Biden administration to scrap the FDA rule.
“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,” said Julia Kaye, a staff attorney at the ACLU Reproductive Freedom Project.
The ACLU in separate litigation is also pushing for the courts to permanently lift FDA restrictions on abortion medication, which is the most common method of abortion in the first 10 weeks of pregnancy. Meanwhile, Republican lawmakers and anti-abortion groups have called on FDA to revoke access to the abortion pill entirely.
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