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Opinion The Supreme Court’s next abortion decision may come sooner than you think

Abortion rights activists rally outside the Supreme Court in May 2019. (Kevin Lamarque/Reuters)

Rachel Rebouché is a law professor at Temple University.

A newly configured Supreme Court featuring a Justice Amy Coney Barrett need not overturn Roe v. Wade to gut abortion rights. The court stands poised to permit states and the federal government unfettered discretion to restrict abortion on the thinnest of justifications. The most immediate example is before the court now and could have repercussions for policies aimed at curbing the covid-19 pandemic.

Since approving medication abortion 20 years ago, the Food and Drug Administration has required in-person delivery of the first drug, mifepristone, that precipitates a nonsurgical abortion. In July, the federal district court in Maryland suspended the in-person requirement during the pandemic, ruling that the FDA’s restriction was unnecessary, given the safety and efficacy of medication abortion, and that it endangered patients who should otherwise minimize contact with providers.

As long as the lower court’s decision stands, abortion providers may counsel patients over the phone or online and then mail them mifepristone through a supervised delivery service. Being able to administer your own abortion, under the remote guidance of a physician, is not only in step with the expansion of telemedicine generally, but also reduces the costs of travel, taking time off work or finding child care for patients who otherwise would spend their scarce resources navigating a cumbersome and pointless policy.

The district court held that the in-person requirement unduly burdens those most vulnerable to the harsher effects of the pandemic — people who work essential jobs or are unemployed, have lost health insurance, live in multigenerational homes or lack access to transportation. Numerous studies make clear that low-income people (who make up three-quarters of the nation’s abortion patients) and people of color are more likely to become ill, to have inadequate resources to respond to illness, and to have worse health outcomes as a result of deep health inequalities in our country.

A few weeks ago, the Trump administration and several states, which are not party to the lawsuit but joined as amici, asked the Supreme Court to step in and issue an emergency stay of the order. The brief submitted by the states, all of which have numerous abortion restrictions on their books, argues that in-person dispensation and counseling impose no burdens and no risks for patients. States such as Texas, which effectively outlawed abortion in the spring under the guise of protecting people from covid-19, now claim that the pandemic poses no threat for people needing medical care.

The nomination of Amy Coney Barrett

That Barrett could join the court and reinstate FDA policy is not a question of the future of Roe; the court, at any time now, could upend abortion access for thousands of people burdened by the FDA’s requirement and hit hardest by covid-19. If the court sides with the Trump administration, it will send the clear message that the court is prepared to give states wide discretion to enact laws that have no health benefits and are contrary to clear clinical evidence. Chief Justice John G. Roberts Jr., even when voting to strike down an abortion restriction in a recent abortion case, wrote an opinion that further opened the door to such deference. It might not matter to the court that FDA restrictions are untethered to patient safety and produce no health benefit for patients.

Broad deference to legislators will not only further erode abortion rights, but also has significant implications for states’ responses to the pandemic. Lawmakers should enact policies that take up, rather than contradict, sound scientific and medical evidence. Yet over the past year, some states have shown that they prioritize politics over the public’s health. For instance, the same states supporting the FDA’s in-person requirement are currently expanding telemedicine across various health-care sectors, but carving out exceptions for abortion. While an array of physicians develop capacity to deliver care remotely, those who provide abortions will be prohibited from adopting the public health advice issued by the Centers for Disease Control and Prevention and the FDA itself.

Telemedicine, of course, is not a perfect solution to problems posed by covid-19. Telemedicine may not lower the cost of abortion services and will not lift bans on state funding for abortion. But it can reorient the health-care system to respond to people’s everyday needs and fill gaps in our health-care infrastructure. We can only hope that the Supreme Court does not stand in the way of the health care so many people need.

Read more:

Jennifer Rubin: The unmaking of the Supreme Court

Ruth Marcus: Amy Coney Barrett’s alignment with Scalia has implications far beyond 'Roe v. Wade’

Paul Waldman: The Republican strategy for every Supreme Court nominee: Hide what you believe

David Cole: This is the Supreme Court’s tipping point