The Supreme Court on Thursday evening rejected the Trump administration's request to reinstate a rule requiring patients to obtain the first pill required to induce a medication abortion at an in-person appointment with their doctor. The unsigned order, which temporarily keeps in place the ruling of lower courts,following the death of Justice Ruth Bader Ginsburg, a fierce supporter of abortion rights.
Siding with abortion-rights groups, the Supreme Court declined to lift a nationwide court order that, due to the pandemic, temporarily suspends the Food and Drug Administration's long-standing requirement that mifepristone (also sold as Mifeprex), the first pill of two used to induce a medication abortion, be dispensed by a doctor in-person. In its five-page order, the high court pushed the case down to the district court and said it will wait for a "more comprehensive record."
Justices Samuel Alito and Clarence Thomas, who are historically against abortion rights, dissented. Justice Alito questioned the lower court judge's logic that the FDA's rule posed a risk to COVID-19 exposure if other activities in the state, which have since reopened, did not.
"The judge 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—such as indoor restaurant dining, visiting hair salons and barber shops, all sorts of retail establishments, gyms and other indoor exercise facilities, nail salons, youth sports events, and, of course, the State's casinos," Alito wrote.
The case, Food and Drug Administration v. American College of Obstetricians and Gynecologists (ACOG), considers the FDA's long-standing rule. At the outset of the coronavirus pandemic, ACOG, a professional medical organization that represents 90% of physicians in the field, requested that the FDA lift that requirement, arguing that not only was the in-person requirement medically unnecessary, but in the context of the COVID-19 pandemic, it placed patients and medical staff at risk of exposure to the virus.
When the FDA refused, ACOG sued. In July, a federal judge agreed, granting the group a preliminary injunction that temporarily suspended the FDA's in-person rule. In his decision, Judge Theodore D. Chuan wrote that the regulation, in the context of a pandemic, presented a "serious burden to many abortion patients."
The Trump administration appealed, and in August an appellate court unanimously declined the administration's request to reverse the lower court's decision. Two weeks later, the Trump administration went to the Supreme Court, asking for it to block the lower courts' orders.
The rule will remain suspended at least until the district court reviews the government's request to instate the regulation, which the Supreme Court asked it do within 40 days.
"It is a relief that, for the next few weeks at least, the Trump administration cannot force patients who need an early abortion to needlessly risk contracting a life-threatening disease as a condition of obtaining care," said Julia Kaye, an attorney with the American Civil Liberties Union and lead counsel challenging the FDA's regulation, in a statement emailed to CBS News on Thursday.
A spokesperson for the FDA did not immediately respond to a request for comment.
Use of the medication has steadily increased since it was first approved by the FDA in 2000, and it now accounts for nearly 39% of all abortions in the United States, according to data from the Guttmacher Institute, a research organization that supports abortion rights. When used within the first nine weeks of pregnancy, medication abortion works as directed 99.6% of the time, has a 0.4% rate of major complications and an associated mortality rate of less than 0.001%, according to data compiled by the Kaiser Family Foundation.
Multiple medical professional groups have voiced their support for ACOG's request to suspend the in-person pill delivery requirement. In an amicus brief filed to the Supreme Court, attorneys representing 18 such groups, including the American Medical Association, wrote "medication abortion is a safe and effective treatment" and that "the government's job is not to turn back the clock on medical practice, let alone in a global pandemic."
Senator Ted Cruz and 19 other Republican senators last month called the lower courts' decisions in the case "rogue activism" and applauded the FDA's "zealous fight" to maintain the regulations amid the coronavirus pandemic.
In a letter to the FDA, the conservative lawmakers also called for the agency to remove the abortion pill from the U.S. market entirely, writing that "pregnancy is not a life-threatening illness." The comment riled women's rights groups, who noted that the United States' maternal mortality rate is among the highest of developed countries.