September 28, 2020

First Supreme Court reproductive battle without Ginsburg likely over mifepristone

Laura Paskus

The U.S. Supreme Court.

The first reproductive rights test for the U.S. Supreme Court since Justice Ruth Bader Ginsburg’s death will likely be the court battle over whether people should be able to access the medication mifepristone for abortion through telehealth.

The Federal Drug Administration (FDA) requested the U.S. Supreme Court to stay a lower court’s decision to enable women to receive mifepristone through telehealth during the pandemic. Prior to the pandemic, people had to travel—in some cases hundreds of miles—to a clinic to receive the medication.

But, patients do not have to take the medication at the clinic. They can return home to take it in the privacy of their homes. 

The American College of Obstetricians and Gynecologists (ACOG) and other partners sought—and received—a preliminary injunction this summer from a Maryland judge barring the FDA from enforcing its in-person requirement to receive mifepristone. Mifepristone is one of the two drugs patients can take for an abortion up to 10 weeks of gestation.

Mifepristone is safe and rarely leads to complications, according to health experts and reproductive rights advocates. But, despite the fact that it has been available for 20 years, the FDA restricts it by requiring a person to travel to a clinic to receive the drug. The FDA began to allow people to take the medicine at home to initiate an abortion in 2013, according to the American Civil Liberties Union. The ACLU brought the suit on behalf of ACOG.

Related: Medical abortion just got easier but it may not last

Because the FDA has maintained the in-person requirement for the medication for 20 years, which reproductive rights experts have said is politically motivated, a nonprofit group began a study a few years ago to enable patients to receive mifepristone through telehealth. New Mexico is one of the states participating in that study.

Related: TelAbortion could ease access woes

Reproductive rights experts have said that the issue of traveling long distances in rural New Mexico to seek an abortion is a major obstacle for reproductive healthcare.

The FDA appealed the Maryland decision to the Fourth Circuit Court of Appeals in August but lost. Later that month, the FDA then requested the U.S. Supreme Court to stay the decision. The Maryland judge’s decision allows mifepristone to be available through telehealth to all people in the U.S. 

The ACLU argued that during a pandemic, people should be able to receive mifepristone through telehealth rather than have to travel hundreds of miles and, in some cases, out of state, to receive the medication. 

But if the FDA prevails at the Supreme Court, mifepristone would again be available only by traveling to a clinic that can dispense it.

Ellie Rushforth, an attorney with ACLU-NM, said by phone that a decision on the stay would likely come “relatively soon.”

If so, it could be the first battle over reproductive rights, and particularly abortion, since Ginsburg died on Sept. 18 at the age of 87. She was the first woman and the first Jewish person to lay in state at the U.S. Capitol building on Friday.

This weekend, President Donald Trump nominated Amy Coney Barrett to join the high court. Despite Ginsburg’s “fervent wish” that she not be replaced before the election, Senate Majority Leader Mitch McConnell, R-Kentucky, has said the Senate will consider Trump’s pick immediately.

Ginsburg was known for her staunch support of reproductive rights. Rushforth called her “a giant in the reproductive health care and justice movement,” and said “there’s not much that her passing will not impact.”

Rushforth said that not having Ginsburg’s voice in the room will impact the debate and the decision on this issue.

But, Rushforth said that despite a court that is already weighted heavily toward conservative opinion – there are now only three liberal-leaning justices on the court – she is still optimistic about the outcome of the decision.

 “I’m hopeful the court will understand how important it is for people to access the care they need safely during this public health crisis. I’m hopeful that logic will prevail,” she said.