The court’s three liberals objected to reimposing the requirements, which a lower court had eased during the pandemic in an effort to protect women and health workers.
“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” wrote Justice Sonia Sotomayor, joined by Justice Elena Kagan. She seemed to hold out hope the incoming administration of President-elect Joe Biden will change the policy.
“One 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.”
Justice Stephen G. Breyer also noted his dissent, but did not join Sotomayor’s opinion.
The court’s conservative majority did not explain its reasoning, as is common in emergency applications. But it has been strengthened by the addition of Justice Amy Coney Barrett, who joined the court since it last considered the issue and refused to reinstate the requirements.
Chief Justice John G. Roberts Jr. wrote separately to say he went along with the decision to dissolve the lower court’s stay out of respect for government experts.
“My view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health,’ ” Roberts wrote, referring to an opinion he wrote upholding state limits on attendance at church worship services.
“In light of those considerations, I do not see a sufficient basis here for the district court to compel the FDA to alter the regimen for medical abortion.”
A federal judge this summer had found the rules to be cumbersome and dangerous during the pandemic.
The Supreme Court in the fall told U.S. District Judge Theodore D. Chuang in Maryland to reconsider in light of current conditions. But he said last month that the health risks have “only gotten worse.”
He stood behind the nationwide injunction he put in place.
“While the progress on vaccines and medical treatments for COVID-19 are cause for optimism and may advance the day that the Preliminary Injunction will no longer be warranted, the impact of these advances to date has not meaningfully altered the current health risks and obstacles to women seeking medication abortions,” he wrote.
Doctors and abortion providers who brought the suit said the government had not shown there was a good reason to retain the rules, as other more dangerous drugs were dispensed without an in-person visit.
The government asks for “the extraordinary step of staying a preliminary injunction that protects patients and health-care providers from life-threatening COVID-19 risks” they told the court.
“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,” Julia Kaye, an attorney for the American Civil Liberties Union, said in a statement Tuesday. Biden’s administration, she added, “must right this wrong on day one and hold firm to its commitment to support both evidence-based regulations and reproductive freedom.”
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 women pick up the pills in person and sign for them.
Sotomayor said the longtime restriction made no sense.
“Of the over 20,000 FDA-approved drugs, mifepristone is the only one that the FDA requires to be picked up in person for patients to take at home,” Sotomayor wrote.
She said that government agencies during the pandemic have eased restrictions on picking up other drugs in person.
“As a result, 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,” Sotomayor wrote.
She called the policy an “unnecessary, unjustifiable, irrational, and undue burden on women seeking an abortion during the pandemic.”
The case is FDA v. American College of Obstetricians and Gynecologists.