The particular problem at issue here — whether an abortion-inducing drug, mifepristone, should be available during the pandemic without having to travel to a hospital, clinic or medical office — can be easily solved by the new administration. The problem of a Supreme Court willing to bend doctrine and precedent to fit its preferred outcome will persist for decades.
Since the start of the pandemic, the Food and Drug Administration has relaxed in-person requirements for administering drugs and encouraged the use of telemedicine so that, as Health and Human Services Secretary Alex Azar said in March, people can “access healthcare they need from their home, without worrying about putting themselves or others at risk.”
Except for abortion.
The practice of abortion has been transformed in the past few decades with the availability of a two-drug protocol available in the first 10 weeks of pregnancy — mifepristone, followed within 48 hours by misoprostol. Now, a majority of American women who choose to end their pregnancies in the first 10 weeks choose medication rather than surgery.
Under a protocol approved by the FDA before the pandemic, patients seeking medication abortions can receive remote counseling from doctors and take the medicine at home; however, they must go in person to a hospital, clinic or medical office to pick up the mifepristone and sign a release form.
When the pandemic hit, the FDA removed similar barriers for other drugs, including powerful opioids. The American College of Obstetricians and Gynecologists (ACOG) sued to block the government from enforcing the in-person rules for mifepristone during the pandemic. A district court judge found the requirement was a “substantial obstacle” — the relevant constitutional test — to women seeking abortions and ordered the rule lifted while the pandemic raged. A federal appeals court declined to intervene.
Then came the Supreme Court. It’s important to understand that this wasn’t a case that asked the justices to decide whether the FDA rule was right or wrong. At this stage of the litigation, the question was simply whether to dissolve the lower court judge’s order and reinstate the in-person requirement while the two sides fight it out in court.
And there are clear, stringent standards for when courts, including the Supreme Court, should intervene, in the middle of a case, to undo such orders. That’s supposed to happen only in “extraordinary” circumstances. The side arguing to lift the order bears the “heavy burden” of showing not only that the lower court decision was wrong but that it will suffer “irreparable injury” if the order remains in place while the case proceeds.
Consider the competing claims — the “equities,” in legal terms — here, the real-world consequences of forcing pregnant women to pick up mifepristone in person. More than half of those who have abortions are people of color, at far higher risk for dying of covid-19. Three-fourths are low-income, meaning they are more likely to have to take public transportation to get to clinics to pick up their medicine, and live in crowded conditions where the virus, if they contract it, is more easily spread.
Meantime, the pandemic has led clinics to dramatically reduce their hours or even stop providing medication abortion services altogether. The harder it becomes for a woman to make the necessary trip, the more likely it is that she will not be able to obtain the medication before the 10-week window is up.
And what is the Trump administration’s argument to the contrary? No biggie, argued acting solicitor general Jeffrey B. Wall, because women can just obtain surgical abortions later in pregnancy. “A regulation that merely makes it more difficult to obtain an early abortion does not create a substantial obstacle to that ultimate decision so long as standard medical options are available for later abortions,” Wall told the court.
Merely makes it more difficult? How clueless can you get? Justice Sonia Sotomayor nailed it: “What a callous response.”
As you may have guessed, Sotomayor was on the losing side. The court voted to lift the stay, with the three remaining liberals dissenting. Among those in the majority, only Chief Justice John G. Roberts Jr. bothered to explain his reasoning: It isn’t up to courts to second-guess “the politically accountable entities with the background, competence, and expertise to assess public health.”
To that Sotomayor, joined by Justice Elena Kagan, had a tart rejoinder. “I agree that deference is due to reasoned decisions of public health officials grappling with a deadly pandemic. But the record here is bereft of any reasoning.”
Who needs reasoning when you have six votes?