January 13, 2021

Supreme Court brings back restrictions on medication abortion

Laura Paskus

The U.S. Supreme Court

The U.S. Supreme Court ruled Tuesday to reinstate restrictions on the a medication abortion pill that allowed patients to receive it through the mail during the pandemic.

The justices ruled 7 to 2 on the decision in favor of the U.S. Federal Drug Administration. The FDA has maintained a rule that a patient must travel to a clinic to pick up the abortion pill mifepristone for the past 20 years when the drug first came onto the market. Reproductive advocates and experts have said that is politically motivated. The patient can take the pill in a place of their own choosing.

The FDA, under the Trump administration, continued that rule during the early stages of the pandemic. The American College of Obstetricians and Gynecologists (ACOG) sued, arguing that during the global health emergency, the in-person visit to pick up the drug should be put on hold to protect public health.

A lower court in Maryland agreed over the summer, but the FDA appealed.

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

Now, with one week left of the Trump administration, a majority on the Supreme Court sided with the FDA. Chief Justice John Roberts, writing the decision for the majority, said the question before the court was not whether the FDA’s in-person requirement placed an undue burden on women seeking an abortion but whether the lower court properly ordered the FDA to lift the established requirements.

“Courts owe significant deference to the politically accountable entities with the background, competence and expertise to assess public health,” he wrote in his opinion.

Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said Roberts chose to listen to anti-abortion politicians rather than ACOG, which is an expert on abortion care.

Rushforth also said this decision makes mifepristone the only drug that must be dispensed in person during the pandemic.

“Powerful opioids that used to require an in-person visit pre-pandemic can be dispensed by mail at this point,” Rushforth said.

Justice Sonia Sotomayer said, in her dissent, that more than half of women who have abortions are women of color, and COVID–19’s mortality rate is three times higher for Black and Hispanic individuals than non-Hispanic white individuals. She also said that three-quarters of abortion patients have low incomes. These individuals are more likely to live in intergenerational housing, so not only does the decision put the women at higher risk of contracting COVID-19, but it also puts the patient’s parents, grandparents and other family members at higher risk.

Justice Elena Kagan joined in Sotomayer’s dissent.

Rushforth said that in New Mexico pregnant people who have been able to safely access abortion through telehealth will now be required to take time off from a job, secure transportation and find child care during a pandemic “when we’re not supposed to be outside of our bubble.”

“So the court is asking these folks to take on these risks for no medically justified reason,” Rushforth said.

Another difficulty this ruling creates for those seeking an abortion is that during the pandemic, some clinics have closed for periods of time or reduced how many patients they can see at one time. This poses a danger if the patient has to visit the clinic in order to pick up the pill because it could push some outside of the 10-week window in which a patient can take mifepristone.

The FDA said patients could still seek a procedural abortion. Sotomayer called this “callous.”

Rushforth said such restrictions leave anti-abortion politicians talking “outside both sides of their mouth.” Many states have passed gestational bans to restrict how much time a patient has to seek a procedural abortion. So far, the court injunctions on those state laws have prevented them from going into effect.

“You can choose a different method even though that method also requires an in-person visit,” Rushforth said. “It’s the government deciding what medical procedure you get. Politics and ideology have no place in those decisions.”

Planned Parenthood of the Rocky Mountains Director of Strategic Communications Neta Meltzer called the high court’s decision “confounding.”

“We’re living through a pandemic during which in-person interaction must be avoided when possible, and yet SCOTUS has reinstated this unnecessary requirement. Let’s be clear: medication abortion care is safe, whether accessed in person or via telehealth, and we must work to dismantle barriers to accessing this care, not uphold arbitrary ones, especially in this moment in history,” Meltzer wrote by email.

The fact that the Supreme Court made this decision with only one week left of the Trump administration is “a signal of what’s to come.”

“The Supreme Court will take any opportunity to undue protections for abortion. They will seize on them,” Rushforth said.

That is why repealing the anti-abortion law written in the state’s 1969 law books should be a priority, Rushforth said. A bill to repeal that law is expected to be filed with this Legislative session.

“It’s more important than ever,” she said.