The Supreme Court has decided its first abortion case since Amy Coney Barrett joined the court. Not surprisingly, it did not favor reproductive rights. But despite the pro-life view of Justice Barrett and many of her brethren, this was most decidedly not a pro-life decision with respect to women seeking abortions, the majority of whom are minorities and poor.
Instead, the ruling subjects these women and their families to increased risks of Covid-19, contrary to other federal policies that reduce the threat of coronavirus.
The decision concerns an FDA requirement for medication abortions, the most common form of abortion during the first 10 weeks of pregnancy. Unlike invasive surgical abortions, which require local anesthesia and must be done in a medical clinic, medication abortions merely require a woman to take two prescription drugs—mifepristone and misoprostol—to induce the equivalent of an early miscarriage.
The process is fairly simple except for one requirement. Women can obtain prescriptions for both drugs through a telemedicine consult, they can obtain misoprostol from a pharmacy by mail, and they can take the drugs at home. But the FDA requires women to obtain mifepristone from a hospital, clinic, or medical office.
The FDA claims this protects women because they receive “in-person counseling about possible complications” and avoid “potential delays” in obtaining the drug. Unpersuasive in ordinary times, this explanation is ludicrous at the height of a raging pandemic. Apparently, six of the nine justices did not think so.
Last July, a federal district court preliminarily enjoined the FDA from enforcing the in-person requirement to obtain mifepristone. Relying on the Supreme Court’s “undue burden” test, it held that the requirement is likely unconstitutional because it imposes a “substantial obstacle” for women seeking medication abortions during the Covid-19 pandemic.
The U.S. Court of Appeals for the Fourth Circuit denied the federal government’s request to overturn that decision, and the case reached the Supreme Court, which allowed the requirement to be reinstated pending further decisions below.
Justice Sonia Sotomayor wrote an impassioned dissent noting how extraordinary the ruling is. The decision would have been galling six months ago, but it is beyond the pale when more than 400,000 Americans have died of Covid-19, the daily deaths have at times exceeded the number killed on 9/11, and a highly contagious variant of the virus is spreading.
Even more extraordinary is how wildly inconsistent it is with various federal policies designed to lessen the spread of the virus. The CDC has encouraged the use of telemedicine “whenever possible” and the FDA and HHS have waived several in-person requirements to obtain certain drugs (including opioids). Yet, throughout the pandemic, the FDA has insisted that women should obtain an abortion drug in person.
Minorities, Poor Women Disproportionately Bear the Risks
As Sotomayor noted, the court’s ruling is astounding in unnecessarily endangering all women seeking the safest form of abortion by increasing their exposure to the virus and the higher risk of severe outcomes from Covid-19 that pregnancy presents. Worse yet, minorities and poor women, who represent a majority of those seeking abortions, will disproportionately bear these risks.
First, the risk of mortality from Covid-19 for people of color is at least 2.7 times that of non-Hispanic white people.
Finally, their elderly relatives will face a disproportionate risk of infection because minority and low-income women are more likely to live in intergenerational housing.
The decision presents impossible choices for women seeking early abortions. They can risk Covid-19 infection to obtain medication abortions or they can delay their abortions. But in delaying them, they face the prospect of later and riskier surgical abortions, which will also be in person.
What justifies this ruling? According to Chief Justice Roberts, it’s the obligation to defer to “politically accountable entities with ‘the background, competence, and expertise to assess public health.’” Roberts never explains why deference is owed when a requirement undermines public health.
Nor does he describe why the court once again upheld the Trump administration’s agenda through its “shadow court,” i.e., granting an emergency request for intervention before the legal challenge has been fully resolved. But we know why: to protect the life of the fetus and to gradually erode abortion rights.
That the ruling endangers the lives of pregnant women and a disproportionate number of minority women (and their families) seems to be of no import. This is a pro-life mission, which is ultimately anti-life with respect to women—often poor and minorities—seeking to control their reproductive lives. It always has been.
Just as Covid-19’s disproportionate impact on minorities has laid bare our societal inequities, the court’s decision lays bare its view that preventing abortions is more important than protecting women, even in a pandemic.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Sonia M. Suter is the Kahan Family Research Professor of Law and founding director of the Health Law Initiative at George Washington University Law School. Her scholarship focuses on issues at the intersection of law, medicine, and bioethics, with an emphasis on reproductive rights and genetics.