A District Court in Maryland has 40 days to lift, modify or continue the order it previously made to allow the abortion medication mifepristone to be available through telehealth during the pandemic.
The U.S. Supreme Court asked the lower court on Thursday to reconsider a case the American College of Obstetrics and Gynecologists (ACOG) brought against the Food and Drug Administration (FDA) over the summer. ACOG wants the FDA to allow mifepristone to be available for abortion care through telehealth during the pandemic. Although the FDA approved mifepristone 20 years ago for abortion care, the FDA continues to regulate it as if it were a dangerous drug. The FDA argued in court that people should have to continue to pick up mifepristone at a health care provider during the pandemic. But the patient does not have to take the medication at the health care provider.
In some cases, the travel necessary to purchase the one pill could be hundreds of miles, according to reproductive rights experts.
Related: TelAbortion could ease access woes
Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said forcing people to travel to a health care provider to pick up a pill during a pandemic is unjust.
“It is particularly cruel and ideologically motivated that during a public health emergency where infection rates are only going up and the risks are only increasing that the Trump administration would force women to risk their health and safety to access needed and wanted medical care,” Rushforth said.
The FDA asked the Supreme Court to issue a stay on the Maryland District Court’s injunction. That means that the FDA wanted the high court to end the lower court’s decision that allowed women across the nation to access mifepristone through telehealth while the FDA prepared for an appeal.
“The Supreme Court has told the FDA to go back to the lower court and present new arguments or provide additional evidence about why we should force women to risk their lives to obtain early abortion care,” Rushforth said.
Rushforth called the Supreme Court’s decision to return the case back to the lower court “highly unusual.”
Justice Samuel Alito wrote a dissent with Justice Clarence Thomas joining him.
Rushforth said that another problem with the FDA’s position is that the agency presumes that patients have access to an abortion provider.
“Many people who live in states that are hostile to abortion rights are still struggling to access this care during the pandemic. And just like other health care providers, many abortion clinics are operating on a limited schedule to limit risks and exposure to the virus,” she said.
Even with women’s ability to receive mifepristone through telehealth currently, obtaining an abortion is still difficult, Rushforth said.
“Even though right now patients can continue to access this medication safely through the mail, there are still tremendous barriers across the country to get access to an abortion provider. In the meantime, we are grateful this common sense injunction is in place but there are still hundreds of restrictions on abortion (across the nation) that patients have to contend with, and those fall on the most impacted people. We’re talking about low income folks, the young and people of color, so the barriers haven’t gone anywhere,” she said.