After a panel of the U.S. Court of Appeals for the 4th Circuit refused to put Chuang’s order on hold, Acting Solicitor General Jeffrey B. Wall went to the Supreme Court.
“The FDA has made, and continuously adhered to, the judgment that these requirements mitigate serious health risks associated with the drug, which can increase if the patient delays taking the drug or fails to receive proper counseling about possible complications,” Wall wrote.
Seeking to stay a district-court ruling before an appeals court reviews the merits of the decision used to be uncommon. But the Trump administration has not hesitated to take such cases to the more conservative Supreme Court — far more than previous administrations — and most often has been rewarded.
The abortion rights supporters who brought the case said there is no need for the Supreme Court to intervene.
“With COVID-19 raging across the nation — and despite being rebuffed twice in the courts — the Trump administration refuses to end its crusade to subject abortion patients and their families to entirely unnecessary exposure risks,” Julia Kaye, staff attorney at the American Civil Liberties Union’s Reproductive Freedom Project, said in a statement.
“Forcing patients to travel during a pandemic just to pick up a pill is irrational and dangerous, which is why the medical community uniformly opposes this senseless rule. We hope the Supreme Court will deny the Trump administration’s cruel attempt to score political points by putting people seeking essential reproductive health care at needless risk.”
Medication abortions require taking two drugs, mifepristone and misoprostol, up to 10 weeks into a pregnancy. They have been in use since 2000, and in 2016 the FDA eliminated the requirement that the first drug be administered in a hospital, clinic or doctor’s office. FDA experts said it was just as safe for a woman to take the medications at home.
But the FDA did not relax the requirement that the woman pick up the pills in person and sign for them.
The challengers say that mifepristone is the only drug that the FDA requires be dispensed in a clinical setting, although patients may self-administer it at home.
They said in filings in lower courts that the increased use of telemedicine, especially during the pandemic, made a visit unnecessary.
“Because of the [FDA] requirements, patients who have already been evaluated, counseled, and prescribed mifepristone by a certified clinician using telemedicine or at a prior in-person visit cannot avoid COVID-19 risks by obtaining mifepristone by mail, but are forced to travel to a clinical setting solely to pick up a pill and sign a form,” Kaye wrote.
She noted that the FDA had relaxed the rules for other drugs during the pandemic, including some opioids.
But the administration told the Supreme Court that Chuang was substituting his own judgment for that of the experts at the FDA.
“The court failed to appreciate questions that it should have left for the FDA to resolve, such as whether counseling at the time of dispensing might be more effective because it might be closer in time to when the patient takes the drug or more effective at communicating risks,” the government’s petition states.
The court has faced a string of emergency requests spawned by the pandemic, involving accommodations for voting and restrictions on gatherings such as worship services, for instance. It has almost always deferred to government officials who made the rules, rather than with judges granting relief to challengers.
The current case is Food and Drug Administration v. American College of
Obstetricians and Gynecologists.