Posted Oct 8th 2020, 9:30 pm by Amy Howe
The Supreme Court on Friday, at the request of the Food and Drug Administration, postponed the reinstatement of a federal obligation that a pill used for abortion in the early stages of pregnancy should be personally picked up by a health care provider. A Maryland federal district court suspended the request in July, concluding that requiring personal visits during the COVID-19 pandemic is against the constitution. The FDA asked judges in August to block the district court order while it was appealing. However, the judges on Thursday evening asked the government to return to the district court for a less comprehensive order.
The provisions at the center of the order on Friday govern the dispensing of Mifeprex, the brand name for mifepristone that the FDA has approved to terminate pregnancies in the first 10 weeks. According to FDA regulations, patients must receive the drug from a health care provider in a medical setting after signing a form acknowledging the risks associated with the drug. After the medicine is collected from a hospital or clinic, patients can take the pill at home. However, the regulations do not allow patients to receive the pill in the mail.
The American College of Obstetricians and Gynecologists challenged FDA regulations in federal court earlier this year. ACOG argued that requiring patients to personally visit their health care providers during the pandemic is against the constitution by creating a significant barrier to obtaining an abortion. In July, U.S. District Judge Theodore Chuang agreed and banned the FDA from enforcing personal requirements in the U.S. while the pandemic continues. The U.S. 4th Circuit Court of Appeals denied the FDA's motion to postpone Chuang's order pending FDA appeal.
The FDA went to the Supreme Court on August 26, asking the judges to block Chuang's order while the lawsuit continues. The court was told that enforcement of the regulations does not significantly impede the path of patients seeking an abortion, as those patients can continue to receive surgical abortions. In addition, the FDA stressed that the Supreme Court "has made it clear that judges must not question how officials address public health concerns in unsafe areas".
ACOG countered that Chuang's decision was based on "undisputed evidence" that any factor involved in a personal visit to collect the medicine was "a serious risk of exposure". This problem is compounded by the fact that female abortion patients as a group are particularly vulnerable to COVID-19, among other things because they are pregnant and because the majority are colored people (who are at a disproportionately high risk of serious illness or death from Coronavirus). However, that risk can be avoided, ACOG suggested, by allowing doctors to prescribe the drug after video visits and allowing patients to receive the drug in the mail, as the FDA did with other drugs during the pandemic.
Although the FDA's motion for reinstatement was fully disclosed by September 8, the judges did not respond to the emergency motion for a month. In an unsigned order with a paragraph on Thursday evening, the court found that the government had alleged that Chuang's order was at least too broad, as it would apply indefinitely in all 50 states, even if the COVID-19 -Sentences in some better states. Since more information would help judges reach a decision, the court said the court put the government's request on hold so that Chuang could consider an FDA request to revoke, amend, or freeze his order, "also for the reason that that relevant circumstances have changed. "Chuang, the court added," should make a decision within 40 days of receiving the government submission. "
Judge Samuel Alito disagreed with the court's decision to postpone the case. In a three-and-a-half page statement from Justice Clarence Thomas, Alito complained that there was "no legally valid reason for this unusual disposition" of the FDA request. Alito suggested that choosing not to respond to the government's request has the same effect in all respects as rejecting it, as the government is still unable to enforce the rules. However, Alito noted that if the court denied the FDA's request, "would highlight the inconsistency in the court's rulings on public safety measures related to COVID-19," as the court had done in previous cases Abandoning state and local guidelines, Alito wrote, "They have placed unprecedented restrictions on personal freedom, including severe restrictions on initial adjustment rights." In this case, Alito stressed, Chuang saw "the pandemic as the reason for extending the abortion law recognized in Roe v. Wade". In the court's COVID-19 cases, Alito said the court should allow the FDA's request. "I see no reason to refuse to rule," wrote Alito.
There's no way to know why it took the judges so long to respond to the FDA's request, or why they chose to take the unusual step of sending the case back to the district court rather than directing the request approve or reject. However, Thursday's order could well reflect a compromise following the death of Judge Ruth Bader Ginsburg on September 18, who left the court with just eight members. If so, the court may have welcomed a ninth member until the district court decides on the government's motion and the case returns to the Supreme Court.
This article was originally published by Howe on the Court.
Judges delay action at the request of the FDA to reinstate abortion pill restrictions.
SCOTUSblog (October 8, 2020, 9:30 p.m.),