The FDA won’t allow you to get the abortion pill from a pharmacy with a prescription. The coronavirus pandemic has made it even harder to access.
WASHINGTON – The Supreme Court ruled on a temporary basis Thursday night that women seeking to end their pregnancies with medication do not need to visit a health care provider, given the COVID-19 pandemic.
The action was a setback for the Trump administration, which had sought to reinstate a 20-year-old policy following lower court rejections. The justices ordered the government to make its case in more detail before a federal trial court, a process that could take six weeks and extend beyond Election Day.
The court gave little reason for its action other than a desire to develop “a more comprehensive record.” But it hinted that during the review process, “relevant circumstances” could change. That could mean an easing of COVID-19 risks which, in turn, may allow the policy to be reinstated.
The court’s most consistently conservative justices, Clarence Thomas and Samuel Alito, dissented. They would have allowed the U.S. Food and Drug Administration policy to be reinstated immediately.
The justices had been considering federal district court Judge Theodore Chuang’s ruling that allowed women up to 10 weeks pregnant nationwide to receive the abortion pill without an in-person visit, as the FDA has required for two decades. The decision leaves that ruling in place for now.
The American College of Obstetricians and Gynecologists brought the original lawsuit in an effort to get the FDA rule suspended because of the risks associated with travel and personal contact during the pandemic. Lawyers for the challengers noted that many health care authorities, including the American Medical Association, say abortion medication is safe to administer at home.
“Patients who have been previously evaluated and counseled by a clinician at a prior in-person visit or telemedicine appointment are forced to travel to a health center during the pandemic just to be handed a pill and sign a form,” they said in legal papers. “And these patients, their doctors, and other essential workers are all needlessly exposed to greater risk of contracting COVID-19 for this ministerial function.”
Activists demonstrated outside the Supreme Court in March during oral arguments in a major abortion case. (Photo: Jack Gruber, USA TODAY)
Chuang ruled that during the pandemic, the FDA rule represented the sort of undue burden on abortion rights barred by Supreme Court precedent. The appeals court refused to lift Chuang’s injunction while hearing the case, so the Trump administration asked the Supreme Court to step in.
“Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first 10 weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat riskier,” acting Solicitor General Jeffrey Wall argued in court papers.
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Since the spring, the pandemic has fueled a spate of lawsuits on behalf of voters, church worshipers, prisoners and others challenging federal and state policies, but the Supreme Court has proven to be a roadblock. The high court has chosen to leave responding to the pandemic largely in public officials’ hands.
Thomas and Alito, sometimes joined by other conservative justices, have objected to the restrictions many of those rulings have placed on First Amendment rights. But in this case, Alito wrote, the lower court actually used the pandemic to expand abortion rights by jettisoning the 20-year-old policy dictating personal visits to get abortion pills.
“Under the approach recently taken by the court in cases involving restrictions on First Amendment rights, the proper disposition of the government’s stay application should be clear: grant. But the court is not willing to do that,” Alito wrote.
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