The U.S. Supreme Court on Tuesday night granted the Trump administration’s request to reinstate in-person abortion medication requirements during the pandemic.
U.S. Food and Drug Administration regulations require mifepristone, which is used in medication abortion, to be dispensed at a clinic, hospital or medical office. Lower courts had blocked the requirements this past summer, finding them to be a “substantial obstacle.”
“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,” wrote Chief Justice John Roberts in the 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,” Roberts continued.
In her dissent, Justice Sonia Sotomayor raised concerns about patients’ ability to access abortion pills amid an ongoing public health emergency.
“The FDA’s policy imposes an unnecessary, unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic,” Sotomayor argued.
WHY IT MATTERS
As Sotomayor pointed out in her dissent, the federal government relaxed many regulations around in-person mandates for medication – but not mifepristone, which is FDA-approved in combination with misoprostol for abortions up to ten weeks’ gestation.
“After the Secretary of Health and Human Services 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 pointed out.
“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,” she continued.
Several states in the country have only one abortion clinic, with patients needing to travel hundreds of miles – sometimes in conjunction with other requirements, such as a 72-hour waiting period between appointments – for care.
Reproductive health and rights advocates have noted that abortion via telehealth could help address some of these barriers, which disproportionately affect underserved populations, including low-income patients and people of color.
“During a global pandemic that is disproportionately killing people of color, restrictions on reproductive health care – like the FDA’s requirement that patients seeking medication abortion care travel in person to a health center for the sole purpose of picking up a pill and signing a form – hold even graver consequences for these communities,” said Rachel Reeves, ACLU staff attorney, in a September blog post.
THE LARGER TREND
In July, Judge Theodore Chuang blocked the FDA in-person requirements during the COVID-19 crisis. Some abortion providers began delivering mifepristone via mail in response.
Still, providers noted that telehealth is not a universal panacea for access issues. For one thing, 19 states have laws prohibiting the use of telemedicine for abortion.
In addition, virtual care itself has been found to have unequal rates of uptake, with one recent study showing that older patients, Asian people and non-English-speaking individuals are less likely to complete telemedicine visits.
ON THE RECORD
“Medication abortion care can safely be provided through telemedicine and the FDA should be allowing that during this public health crisis,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project, in a statement.
“While not unsurprising, this is a shameful and unnecessary move by the Supreme Court to deny women options for abortion care during a pandemic – and sadly the harm will fall hardest on those who have a hard time reaching care: low-income women, rural women, and those who live far from a clinic,” said Moore.
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