“While COVID-19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade,” wrote Justice Samuel A. Alito Jr., who was joined by Justice Clarence Thomas.
Alito said the court has “stood by” while officials imposed restrictions on religious activities and “drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies.”
The court’s action in this case cannot be squared with that, Alito wrote.
Chuang ruled in July that requiring an in-person visit to obtain the medications needed to induce abortion was unduly burdensome. There is no requirement that a woman take the medication in a clinic setting, and most take the pills that end a pregnancy in its early stages at home.
At the request of abortion providers and the American College of Obstetricians and Gynecologists, Chuang imposed a nationwide injunction against the Food and Drug Administration directive.
After a panel of the U.S. Court of Appeals for the 4th Circuit refused to put Chuang’s order on hold, acting solicitor general Jeffrey B. Wall went to the Supreme Court.
Instead of agreeing with the government’s petition, the court’s order issued Thursday night directed Chuang to “promptly consider a motion by the government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed.”
The case took on added significance because it was the first abortion order issued after the death of Justice Ruth Bader Ginsburg, the court’s most outspoken advocate for abortion rights.
The unsigned order and compromise decision may indicate the court was deadlocked, although only Thomas and Alito declared their views.
Wall told the court that, even in the pandemic, the government had not changed its views on how the drugs should be dispensed.
“The FDA has made, and continuously adhered to, the judgment that these requirements mitigate serious health risks associated with the drug, which can increase if the patient delays taking the drug or fails to receive proper counseling about possible complications,” Wall wrote.
Abortion providers told the court that there was no reason an in-office visit was necessary.
The rules “force patients seeking early abortion care and their health care providers to unnecessarily risk exposure to a life-threatening disease by mandating that patients travel to a health center for the sole purpose of picking up a pill and signing a form,” Julia H. Kaye of the American Civil Liberties Union wrote in a brief to the court.
Medication abortions require taking two drugs, mifepristone and misoprostol, up to 10 weeks into a pregnancy. They have been in use since 2000, and in 2016 the FDA eliminated the requirement that the first drug be administered in a hospital, clinic or doctor’s office. FDA experts said it was just as safe for a woman to take the medications at home.
But the FDA did not relax the requirement that women pick up the pills in person and sign for them.
“Of more than 20,000 FDA-approved drugs, mifepristone is the only one that patients must pick up in person in a clinical setting but are permitted to self-administer elsewhere, unsupervised,” Kaye wrote.
Increased use of telemedicine, especially during the pandemic, made a visit unnecessary, the medical groups argued.
“These patients, their doctors, and other essential workers are all needlessly exposed to greater risk of contracting COVID-19 for this ministerial function,” the brief states.
But Wall said judges should not set aside regulations that FDA experts believe are necessary.
He criticized Chuang’s finding that the regulation imposed a substantial obstacle to the right to abortion, because it could delay a woman from getting the pills before the 10th week of her pregnancy.
The Supreme Court “recognized only a woman’s right to ‘make the ultimate decision to terminate her pregnancy’ . . . not the right to an ‘early abortion,’ ” Wall wrote. “Accordingly, a regulation that merely makes it more difficult to obtain an early abortion does not create a substantial obstacle to that ultimate decision so long as ‘standard medical options are available’ for later abortions.”
Kaye said that would mean surgical abortions, which would provide more risk not only for patients but a greater chance of exposure to the virus for medical personnel.