Written by Adam Liptak
In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.
The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John Roberts, who said the ruling was a limited one that deferred to the views of experts.
The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the COVID-19 pandemic.”
“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”
In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.
“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Sotomayor wrote. “Like many of those laws, maintaining the FDA’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”
She suggested that the next administration should revisit the issue.
“One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times,” Sotomayor wrote.
Julia Kaye, a lawyer with the American Civil Liberties Union, said the Supreme Court had taken an extraordinary step.
“The court’s ruling rejects science, compassion and decades of legal precedent in service of the Trump administration’s anti-abortion agenda,” she said in a statement. “It is mind-boggling that the Trump administration’s top priority on its way out the door is to needlessly endanger even more people during this dark pandemic winter — and chilling that the Supreme Court allowed it.”
Judge Theodore D. Chuang, of the U.S. District Court in Maryland, had blocked the requirement in light of the coronavirus pandemic, saying that a needless trip to a medical facility during a health crisis very likely imposed an undue burden on the constitutional right to abortion.
The case concerned a restriction on medication abortions, which are permitted in the first 10 weeks of pregnancy. About 60% of abortions performed in those weeks use two drugs rather than surgery.
The first drug, mifepristone, blocks the effects of progesterone, a hormone without which the lining of the uterus begins to break down. A second drug, misoprostol, taken 24 to 48 hours later, induces contractions of the uterus that expel its contents.
The contested measure requires women to appear in person to pick up the mifepristone and to sign a form, even when they had already consulted with their doctors remotely. The women can then take the drug when and where they choose. There is no requirement that women pick up misoprostol in person, and it is available at retail and mail-order pharmacies.
The American College of Obstetricians and Gynecologists and other groups, all represented by the ACLU, sued to suspend the requirement that women make a trip to obtain the first drug in light of the pandemic. There was no good reason, the groups said, to require a visit when the drug could be delivered or mailed.
Chuang blocked the measure in July, saying that requiring pregnant women, many of them poor, to travel to obtain the drug imposed needless risk and delay, particularly given that the pandemic had forced many clinics to reduce their hours.
He imposed a nationwide injunction, reasoning that the American College of Obstetricians and Gynecologists has more than 60,000 members practicing in all 50 states and that its membership includes some 90% of the nation’s obstetricians and gynaecologists.
A unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, refused to stay Chuang’s injunction while an appeal moved forward. The Trump administration, which often seeks Supreme Court intervention on an emergency basis when it loses in the lower courts, asked the justices in August to stay the injunction.
In October, in its first encounter with the case, the Supreme Court issued an unusual order returning the case to Chuang, saying that “a more comprehensive record would aid this court’s review” and instructing him to rule within 40 days. In the meantime, the disputed requirement remained suspended.
Chuang issued a second opinion Dec. 9, again blocking the requirement. The “health risk has only gotten worse,” he wrote.
The Trump administration returned to the Supreme Court. Its brief focused mainly on data from Indiana and Nebraska, where state laws continued to require women to pick up the pills in person.
In those states, the administration told the justices, the number of abortions had increased compared to the previous year. That showed, the administration’s brief said, that the requirement did not amount to an unconstitutional burden on the right to abortion.
That argument, lawyers for the medical group wrote in response, “defies rudimentary principles of statistical analysis.” Many factors could account for the rise in the number of abortions in the two states during the pandemic, they wrote, including disruptions in access to contraceptives, unemployment and other circumstances “that have made unwanted pregnancy more likely and parenting less tenable for some.”
Sotomayor was also unimpressed by the argument. “Reading the government’s statistically insignificant, cherry-picked data,” she wrote, “is no more informative than reading tea leaves.”