The Supreme Court on Thursday refused to reinstate a federal regulation that requires patients to pick up abortion pills in person from a hospital or medical office—at least for the moment.
In a somewhat unusual order, the High Court said it would consider the Trump administration's request to revive the rule after another round of litigating in a Maryland federal trial court, which should take no more than 40 days. U.S. District Judge Theodore Chuang put the contested Food and Drug Administration rule on hold in July, finding that patients should be permitted to obtain abortion-inducing drugs by mail due to the coronavirus pandemic. Justice Samuel Alito dissented from Thursday's order, joined by Justice Clarence Thomas.
The coronavirus has prompted several rounds of fast-paced abortion-rights litigation around the country. Several months on, the pre-pandemic status quo is mostly unchanged. About 10 states in the South and Midwest suspended abortions altogether in the early phases of the pandemic, or attempted to do so, citing a need to preserve medical supplies and hospital capacity. Courts in four of those states blocked the restrictions, while other states reached agreements with providers allowing abortions to resume on a limited basis. Texas and Arkansas successfully fended off pro-abortion plaintiffs in court, but have since rescinded outright bans on the procedure.
In dissent, Alito said the Court had effectively decided the case by ducking the government's request.
"There is little difference between what the Court has done and an express denial of the government's application," he wrote.
Alito also pointedly criticized the Court for taking what he called an inconsistent approach to emergency appeals. In prior cases challenging COVID-based restrictions, Chief Justice John Roberts wrote that the courts should not second-guess government officials with public health responsibilities during the COVID crisis. In this case, Alito argued, a federal trial judge did just that.
"Under the approach recently taken by the Court in cases involving restrictions on First Amendment rights, the proper disposition of the government's stay application should be clear: grant," Alito wrote.
The government leaned on those prior pandemic cases in its request that the justices reinstate the FDA rule.
"The injunction subjects the decisions of public officials entrusted with the safety and the health of the people in areas fraught with medical and scientific uncertainties to second-guessing by an unelected federal judiciary," acting solicitor general Jeff Wall told the justices in court documents, quoting a May opinion from Roberts involving pandemic-related restrictions on worship.
Chuang put a nationwide hold on the FDA's abortion medication rule in July. The injunction allows patients to obtain abortion-inducing drugs by mail once a prescription is issued because of the pandemic.
The Trump administration said maintaining in-person distribution is essential, given FDA judgments about the risks abortion drugs carry. The government also objected to the nationwide scope of Chuang's decision, arguing the case illustrates the problems with such orders. Courts around the country have issued dozens of nationwide injunctions blocking Trump administration policies since 2017. The administration has repeatedly asked the High Court to curb the practice.
The pro-choice plaintiffs countered that the administration has lifted in-person visitation rules for other prescription drugs and strongly encouraged the use of tele-health alternatives during the pandemic. That it would maintain these particular restrictions as it relaxes many others suggests the government is singling out abortion drugs for no good reason, the plaintiffs said.
"[Government officials] have not, and cannot, offer any legitimate explanation why only clinicians prescribing a medication used for abortion care … should be subject to this singular restriction that prevents them from exercising their medical judgment to provide care to their patients in the safest possible manner during the pandemic," ACLU lawyers wrote in legal filings on behalf of providers and abortion-rights supporters.
The providers also urged the justices to stay out of the case at this stage, since granting a stay "would likely amount to a final resolution" of the case. The FDA rule is on hold only for the extent of the pandemic, and it's possible the coronavirus will recede before the case is decided.
Medication abortion is effective through the first 10 weeks of pregnancy. Patients take two separate prescription pills at a one- or two-day interval, triggering a termination similar to a miscarriage.
The case is No. 20A34 FDA v. American College of Obstetricians and Gynecologists.