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Abortion Pill Dispensing Requirement Valid, FDA Tells SCOTUS

Sept. 10, 2020, 7:50 PM

An in-person dispensing requirement for a drug used in medication abortions is consistent with legal precedents and doesn’t pose a substantial obstacle to abortion access during the Covid-19 pandemic, the Food and Drug Administration told the U.S. Supreme Court Thursday.

The nation’s top court should lift a lower court order barring the agency from insisting that women go to doctor’s offices, clinics, or hospitals to pick up the drug mifepristone, also known as mifeprex, for the duration of the public health emergency caused by the novel coronavirus, FDA said.

FDA asked the court to stay an injunction issued by the U.S. District Court for the District of Maryland in July. The order requires the agency to allow women to get the drug by mail or delivery until the emergency ends.

Women’s health and abortion providers, including the American College of Obstetricians and Gynecologists, argued Sept. 8 that the order must remain in place. FDA disputed their arguments in a reply brief.

As interpreted by the Supreme Court, the U.S. Constitution allows women to end pregnancies before viability, FDA said. But it doesn’t guarantee women the right to use a particular abortion method when there are reasonable alternatives, like surgical abortions, it said.

Similarly, a regulation that makes it more difficult to obtain an abortion during the earliest stage of pregnancy doesn’t create a substantial obstacle to abortion access, so long as other methods are available, FDA said.

The Constitution also doesn’t require the government to remove the “incidental effects” on abortion access caused by the global pandemic, FDA said.

The providers didn’t explain how the in-person dispensing requirement’s alleged burdens amount to “anything more than the ordinary risks and hardships of life during the unforeseen COVID-19 pandemic,” the agency said.

Additionally, they didn’t argue that visiting a clinic to obtain mifepristone is riskier than going anywhere else, it said.

The fact that the injunction issued by the U.S. District Court for the District of Maryland in July is only temporary doesn’t counsel in favor of denying FDA’s application to stay it, the agency said.

Both the district court and the U.S. Court of Appeals for the Fourth Circuit declined to stay the injunction pending FDA’s appeal from the lower court’s decision.

The U.S. Department of Justice represents FDA. Arnold & Porter Kaye Scholer LLP and the American Civil Liberties Union Foundation represent the providers.

The case is U.S. Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, U.S., No. 20A34, reply filed 9/10/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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