In Food and Drug Administration (FDA), et al v. American College of Obstetricians and Gynecologists, et al (2021), the Supreme Court was asked to determine whether the District Court, had correctly ordered the FDA to lift the requirement for women to make in-person visits to hospitals to obtain abortion pills during the COVID-19 pandemic. Before the July 2020 ruling in the US District Court for the District of Maryland, the FDA required mifepristone (commonly marketed as Mifeprex) to be only dispensed at medical clinics or hospitals. Also, to the in-person visits, the FDA required women to sign a Patient Agreement Form in the presence of a certified health care provider before being given the abortion medication. In the July ruling, District Judge Theodore Chuang issued a preliminary injunction which temporarily prevented the FDA from requiring women to be physically present to access abortion medication. The injunction was granted because of the pandemic, and this was expected to last for 30 days. However, the government appealed this decision.
The Supreme Court’s ruling
On the 12th of January, in a 6:3 decision, the Supreme Court granted a stay on the application. Writing for the majority, Chief Justice John Roberts stated that there was not a “sufficient basis for the District Court to compel the FDA to alter…” its requirements for abortion medication. However, much of the court’s 14-page judgment centered around the dissenting judgment given by the three liberal justices. Most notably, Justices Sonia Sotomayor and Elena Kagan stated that the federal government’s rules “impose[d] an unnecessary, unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic”. Moreover, Justice Sotomayor held that mifepristone was the only FDA-approved drug that was required to be accessed in-person only to be taken home for ingestion. She reasoned that the government currently allows several much more “powerful opioids” to be obtained by patients at home, yet the average woman who seeks to terminate an early pregnancy must still physically visit a medical institution only to fill out a form and return home to later take the medication. In her view, the current rule, despite the temporary lift, is medically unsound and unnecessary. In her concluding remarks, Justice Sotomayor stated that “[o]ne 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 activists and campaigners across the country seek to change the current rule of the FDA requiring women to make in-person visits to obtain abortion medications. They expect the future Biden-Harris administration will scrap the rule entirely. Notably, the American Civil Liberties Union (ACLU) has stated that 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.” On the contrary, the Trump administration’s legal team argued that the continuation of the FDA rules on mifepristone, which was approved 20 years ago, “does not create a substantial burden on abortion access”. Republican lawmakers and anti-abortion groups have welcomed the court’s ruling and stated that they would seek that the FDA’s permanently revokes access to abortion pills in the future. In the final hours of the Trump administration, the decision of the Supreme Court perhaps holds a minute victory for the Republican supporters who failed to win the November election and thus form the next government of the United States.
A copy of the judgment can be found here.
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