The U.S. Supreme Court on Thursday declined to lift a nationwide injunction that prevents the Trump administration from enforcing a rule that would regulate a pill commonly used in medication abortions. So for now, the rule remains on hold.
But the court also gave the judge who imposed the ban a chance to consider modifying it to make it less restrictive.
It was the court’s first action on abortion since the death of Justice Ruth Bader Ginsburg last month.
Justices Clarence Thomas and Samuel Alito said the court should have lifted the ban and allowed the government to enforce the rule. The judge who imposed it, they said, “apparently was not troubled by the fact that those responsible for public health in Maryland thought it safe for women (and men) to leave the house and engage in numerous activities that present at least as much risk as visiting a clinic.”
The Supreme Court’s brief Thursday order said that while it was not indicating its views on the merits of the issue, the government argues that it is too broad because it applies nationwide “for an indefinite duration regardless of the conditions in any individual state.”
The order sent the case back to the judge to consider a motion by the government to modify the injunction by concluding that circumstances have changed.
Since 2000, the Food and Drug Administration has said that Mifeprex, a drug used during the first ten weeks of pregnancy, must be given to a patient by a health care professional in a clinic, hospital, or doctor’s office. The patient must sign a form acknowledging that she has been counseled about the drug’s possible risks. The patient can take the pill any time after receiving it and does not have to swallow it in the presence of the health care professional.
A group of doctors, led by the American College of Obstetricians and Gynecologists, filed a lawsuit seeking to have the restrictions relaxed during the Covid-19 pandemic. Medical offices and clinics have either closed or restricted appointments, they said, and requiring pregnant women to make in-person visits exposes them to a heightened risk of infection.
Federal District Court Judge Theodore Chuang of Maryland agreed, ruling in July that keeping the FDA rule in the pandemic would “place a substantial obstacle in the path of women seeking a medication abortion and that may delay or preclude a medication abortion and thus may necessitate a more invasive procedure.”
Instead, he said, the pills could be sent by mail.
His order stopped enforcement of the FDA rule nationwide.
Urging the Supreme Court to put a hold on that order and allow the regulation to again be enforced, the Justice Department said suspending the FDA requirement could worsen health risks associated with Mifeprex, “which can increase if the patient delays taking the drug or fails to receive proper counseling about possible complications.”
As a legal matter, the government said, the FDA rules do not amount to an undue burden on the right of access to abortion, given that surgical methods of abortion remain widely available. The FDA rule is not a substantial obstacle, “even if the Covid-19 pandemic has made obtaining any method of abortion in person somewhat riskier.”
Julia Kay, of the American Civil Liberties Union’s Reproductive Freedom Project, said the Trump administration “refuses to end its crusade to subject abortion patients and their families to entirely unnecessary exposure risks. Forcing patients to travel during a pandemic just to pick up a pill is irrational and dangerous.”
The FDA has suspended in-person requirements for prescription drugs, including highly addictive opioids. “But when it comes to medication abortion, the FDA forces patients to travel,” she said, “just to pick the medication and sign a form.”
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