The Trump administration asked the Supreme Court on Wednesday to reinstate regulations on abortion pills that a federal judge had suspended for the duration of the pandemic.
The federal rules, set by the Food and Drug Administration (FDA), require that abortion-inducing pills be dispensed in person at a medical office. Such drugs can be used to terminate a pregnancy up to 10 weeks.
The High Court has mostly turned away challenges to virus-related restrictions. In a May decision, Chief Justice John Roberts warned that the courts should not "second-guess" decision makers or interfere with public-health policy during the pandemic. Wednesday's emergency appeal sets that commitment against a politically sensitive question during an election season.
The administration took up Roberts's theme to criticize a federal trial court in Maryland for applying its decision to all patients and providers, a so-called nationwide injunction.
"That sort of judicial management of public-health policy is inappropriate," acting solicitor general Jeff Wall wrote, adding elsewhere that the need for the Court to curb nationwide injunctions "has become acute." The administration has been beset by such orders on issues ranging from immigration to the president's ban on transgender military personnel.
A coalition of doctors and pro-choice groups say that the FDA rules violate the Constitution "by imposing life-threatening viral exposure risks as a condition of accessing abortion." They argue that the drug should be available by mail order and note that the FDA has encouraged doctors and patients alike to use tele-health alternatives as much as possible.
The ACLU is representing the plaintiffs.
"Forcing patients to travel during a pandemic just to pick up a pill is irrational and dangerous, which is why the medical community uniformly opposes this senseless rule," ACLU staff lawyer Julia Kaye said in a statement. "We hope the Supreme Court will deny the Trump administration's cruel attempt to score political points by putting people seeking essential reproductive health care at needless risk."
The Maryland court agreed with the plaintiffs and suspended the FDA rules on July 13. U.S. District Judge Theodore Chuang wrote that a confluence of factors related to the coronavirus made the FDA's rule a "substantial obstacle" to abortion, which is unconstitutional. Apart from the continued risk of transmission, many medical offices are closed or have reduced operating hours, Chuang wrote, while "a disproportionate number of abortion patients are from demographic groups with heightened risk for serious illness."
The Fourth U.S. Circuit Court of Appeals turned down the government's first appeal, prompting an emergency petition to the Supreme Court.
The administration acknowledged that the pandemic has made obtaining abortion-inducing drugs "somewhat riskier," but said that continued enforcement of the rule is essential, given the risks the FDA believes abortion drugs carry. Those risks include incomplete abortions, bleeding, and infection. The drug's current warning label advises that it carries "serious risks for up to seven percent of patients."
Dispensing the drug in person mitigates those risks because patients can receive in-person counseling about dangerous side effects, Wall wrote.
"By suspending enforcement of the safety requirements on a nationwide basis, the district court has irreparably harmed both the government and the public more generally," Wall wrote. "Even if the FDA ultimately prevails on the merits, the risks to patients, and any harms that materialize, cannot be undone."
Several virus-related abortion disputes have reached federal courts in recent months. Texas effectively banned the procedure altogether in the early stages of the pandemic, citing a need to preserve hospital capacity and medical supplies.
The chief justice manages emergency matters arising from the Fourth Circuit. The case is No. 20A34 FDA v. American College of Obstetricians and Gynecologists.
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