Supreme Court Refuses for Now to Halt by-Mail Abortion Pills (2)

The U.S. Supreme Court let women, for now, keep obtaining abortion-inducing pills by mail during the Covid-19 pandemic, deferring action on a Trump administration bid to reinstate a requirement that patients visit a medical facility.

In an unsigned, one-paragraph order, the court said a federal trial judge should first consider whether to modify or lift its order blocking the in-person requirement. The high court said the trial judge should rule within 40 days of receiving a request from the government.

“Without indicating this court’s views on the merits of the district court’s order or injunction, a more comprehensive record would aid this court’s review,” the Supreme Court said. The high court pointed to the possibility that “relevant circumstances have changed.”

Justices Samuel Alito and Clarence Thomas dissented, saying they would have reinstated the requirement. They faulted the court for deferring action for six weeks on the request, which President Donald Trump’s administration filed on Aug. 26.

“There is no legally sound reason for this unusual disposition,” Alito wrote for the pair.

One possible complicating factor was the Sept. 18 death of Justice Ruth Bader Ginsburg, who had been a staunch supporter of abortion rights. Her death left the court vulnerable to splitting 4-4 in cases that need a quick resolution.

Should the Senate confirm Amy Coney Barrett, Trump’s nominee to replace Ginsburg, the new justice could ultimately be in a position to cast the tie-breaking vote.

FDA Requirement

The case was the court’s first test of abortion rights since June, when it struck down a Louisiana requirement that doctors get privileges at a local hospital. Chief Justice John Roberts joined the court’s liberals in that 5-4 ruling, saying he was bound by the court’s 2016 decision on a similar Texas law but suggesting he would uphold other types of restrictions.

The Food and Drug Administration has always required that mifepristone, approved in 2000, be dispensed at a medical office, clinic or hospital. In 2016 the FDA let women take mifepristone at home, but the agency left intact the requirement that the pills be dispensed in person. Mifepristone is sold as a brand drug by Danco Laboratories LLC and in a generic pill by GenBioPro Inc.

A group led by the American College of Obstetricians and Gynecologists sued after the pandemic began, arguing that the in-person requirement should be lifted temporarily. The group said the Trump administration has lifted in-person rules for other drugs during the pandemic, including potentially lethal opioids.

“Of more than 20,000 FDA-approved drugs, mifepristone is the only one that patients must pick up in person in a clinical setting but are permitted to self-administer elsewhere, unsupervised,” the group argued in court papers.

Surgery Available

A federal judge in Maryland agreed, issuing a nationwide order blocking the rule. A U.S. appeals court then left the judge’s order in place while the litigation moved forward, prompting the Trump administration to turn to the Supreme Court.

The Trump administration said maintaining the in-person rule doesn’t pose a substantial obstacle to abortion access, particularly given the availability of surgical procedures.

“There is no constitutional right to the abortion method of one’s choice, so long as there are, as here, other reasonable alternative procedures or commonly used and generally accepted methods,” acting U.S. Solicitor General Jeffrey Wall argued in court papers.

Wall said the challengers “have not established that visiting a clinic to obtain the drug is substantially riskier than traveling anywhere else during the Covid-19 pandemic.”

The case is Food and Drug Administration v. American College of Obstetricians and Gynecologists, 20A34.

(Adds excerpts from opinions starting in third paragraph)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Jon Morgan at jmorgan97@bloomberg.net

Elizabeth Wasserman

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