The Supreme Court on Friday put off action on a request from the Food and Drug Administration to reinstate a federal requirement that a pill used to induce abortion in the early stages of pregnancy be picked up in person from a health care provider. A federal district court in Maryland had suspended the requirement in July, concluding that requiring in-person visits during the COVID-19 pandemic violates the Constitution. The FDA asked the justices in August to block the district court’s order while it appealed, but the justices told the government on Thursday night to go back to the district court to ask for a less sweeping order there.
The regulations at the center of Friday’s order govern the dispensation of Mifeprex, the brand name for mifepristone, which the FDA has approved to end pregnancies through the first 10 weeks. The FDA’s regulations require patients to receive the drug from a health care provider in a medical setting, after signing a form acknowledging risks associated with the drug. After picking up the drug from a hospital or clinic, patients can take the pill at home, but the regulations do not permit patients to receive the pill by mail.
The American College of Obstetricians and Gynecologists challenged the FDA regulations in federal court earlier this year. ACOG argued that requiring patients to visit their health care providers in person during the pandemic violates the Constitution by creating a substantial obstacle to receiving an abortion. In July, U.S. District Judge Theodore Chuang agreed and barred the FDA from enforcing the in-person requirements anywhere in the United States while the pandemic continues. The U.S. Court of Appeals for the 4th Circuit rejected the FDA’s request to put Chuang’s order on hold while the FDA appeals.
The FDA went to the Supreme Court on Aug. 26, asking the justices to block Chuang’s order while the litigation continues. It told the court that enforcing the regulations do not place a substantial obstacle in the path of patients seeking an abortion because those patients can still obtain surgical abortions. Moreover, the FDA stressed, the Supreme Court “has made clear that judges are not to second-guess how officials address public-health concerns in areas of uncertainty.”
ACOG countered that Chuang’s ruling rested on “unrebutted evidence” that all of the factors involved in an in-person visit to pick up the drug “pose serious exposure risks.” That problem is exacerbated, ACOG contended, by the fact that abortion patients as a group are particularly vulnerable to COVID-19, including because they are pregnant and because the majority are people of color (who are at disproportionately high risk of serious illness or death from coronavirus). But that risk can be avoided, ACOG suggested, by allowing doctors to prescribe the drug after video visits and permitting patients to receive the drug by mail, as the FDA has done with other medications during the pandemic.
Although the FDA’s request to reinstate the regulations was fully briefed by Sept. 8, the justices did not act on the emergency application for a month. In a one-paragraph unsigned order on Thursday night, the court observed that the government had contended that Chuang’s order is, at the very least, too broad, because it applies indefinitely in all 50 states, even if COVID-19 rates improve in some states. Because more information would help the justices to make a decision, the court explained, the court put the government’s request on hold to allow Chuang to consider a motion by the FDA to lift, modify, or freeze his order, “including on the ground that relevant circumstances have changed.” Chuang, the court added, “should rule within 40 days of receiving the Government’s submission.”
Justice Samuel Alito dissented from the court’s decision to put the case on hold. In a three-and-a-half-page opinion joined by Justice Clarence Thomas, Alito complained that there is “no legally sound reason for this unusual disposition” of the FDA’s request. Indeed, Alito suggested, the decision not to act on the government’s request has, for all intents and purposes, the same effect as denying it, because the government still cannot enforce the regulations. But, Alito posited, if the court were to deny the FDA’s request, it would “highlight the inconsistency in the Court’s rulings on COVID-19-related public safety measures,” because in previous cases the court has deferred to state and local policies that, Alito wrote, “have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights.” However, in this case, Alito stressed, Chuang “saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade.” Under the court’s COVID-19 cases, Alito concluded, the court should grant the FDA’s request. “I see no reason for refusing to rule,” Alito wrote.
There is no way to know why the justices took so long to act on the FDA’s request, or why they opted to take the unusual step of sending the case back to the district court rather than granting or denying the request outright. However, Thursday’s order may well reflect a compromise in the wake of the Sept. 18 death of Justice Ruth Bader Ginsburg, which left the court with only eight members. If so, by the time the district court rules on the government’s motion and the proceedings return to the Supreme Court, the court may have welcomed a ninth member.
This article is also published on SCOTUSblog.