Abortion Pill Must Be Obtained In Person During Pandemic, Supreme Court Rules

In a 6-3 ruling handed down Tuesday, the Supreme Court ordered the abortion pill must be obtained in person, effectively reinstating restrictions on the drug that had been lifted due to the ongoing coronavirus pandemic. As a result of the ruling, individuals looking to obtain the abortion pill known as mifepristone must make an in-person visit to a hospital, clinic, or doctor's office rather than obtain the drug, which can be self-administered without the supervision of a medical professional, through a prescription at a pharmacy or by mail.

While the ruling will ultimately limit access to the abortion pill during the ongoing pandemic by adding to patients' burden in obtaining the pill, the Supreme Court's conservative judges have argued they weren't asked to rule on whether the Food and Drug Administration's in-person requirement represented an undue burden. "The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter," Chief Justice John Roberts wrote in a concurring opinion. "The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic."

In a dissenting opinion Justices Sonia Sotomayor and Elena Kagan, two of the court's liberal judges, criticized the FDA for what they called its "unique treatment" of mifepristone. "After the Secretary of Health and Human Services (HHS) declared the COVID–19 pandemic a public health emergency, the FDA and HHS waived in-person requirements for several other drugs, including certain controlled substances, but not for mifepristone," Sotomayor wrote in their dissenting opinion. "As a result, Government policy now permits patients to receive prescriptions for powerful opioids without leaving home, yet still requires women to travel to a doctor’s office to pick up mifepristone, only to turn around, go home, and ingest it without supervision."

Mifepristone was approved by the FDA 20 years ago as a "safe and effective" means of terminating a pregnancy through 70 days gestation. The drug is also used to manage miscarriages in patients looking to avoid surgery.

According to Sotomayor, mifepristone is the only FDA-approved drug the agency requires to be obtained in person only to be then taken unsupervised at home. Given the Center for Disease Control and Prevention's (CDC) current recommendations to use telemedicine whenever possible and the FDA's waiver of in-person distribution requirements for other drugs, Sotomayor argued patients seeking medication abortions were being treated differently. "The FDA’s policy imposes an unnecessary, unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic," Sotomayor wrote.

Tuesday's ruling comes after the American Civil Liberties Union (ACLU) sued the Trump administration last year on behalf of the American College of Obstetricians and Gynecologists and other reproductive health groups when the FDA refused to drop its in-person distribution requirement for mifepristone despite the growing risk of COVID. According to The New Yorker, the ACLU argued the requirement disproportionately impacted low-income people and people of color, two groups that both constituted the majority of people seeking abortion care and had been found to have a higher risk of serious illness and death from COVID-19.

In July, a lower court ruled in favor of the ACLU, effectively suspending the FDA's in-person distribution requirement for mifepristone until 30 days after the coronavirus pandemic had officially ended. In a statement released Tuesday, ACLU Reproductive Freedom Project attorney Julia Kaye expressed disappointment with the Supreme Court's decision to reinstate the requirement.

"The Court’s ruling rejects science, compassion, and decades of legal precedent in service of the Trump administration’s anti-abortion agenda," Kaye said. "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." Kaye called on President-elect Joe Biden to do away with the FDA's requirement when he takes office later this month.

Tuesday's ruling is the first abortion-related decision to come from the Supreme Court since Amy Coney Barrett was appointed to the court by President Donald Trump last year.