The U.S. Supreme Court on Tuesday reinstated a requirement that women visit a hospital or clinic to obtain a drug used for medication-induced abortions, lifting an order by a lower court allowing the drug to be mailed or delivered as a safety measure during the coronavirus pandemic.
The justices granted a request by President Donald Trump’s administration to lift a federal judge’s July order that had suspended the U.S. Food and Drug Administration’s (FDA) rule requiring in-person visits for the duration of the pandemic.
The pandemic is still raging nationwide. Coronavirus infections remain at record highs in many U.S. states. Nearly 130,000 Americans were hospitalized with COVID-19 as of midnight on Monday and the country had reported 22.5 million infections and 376,188 deaths.
The court’s three liberal justices said they would have denied the Trump administration’s request while litigation over the dispute continues in lower courts.
U.S. District Judge Theodore Chuang in Greenbelt, Maryland in July found that due to the health risks that COVID-19 poses, the in-person requirements “place a substantial obstacle in the path of women seeking a medication abortion” and likely violate their constitutional rights.
Chuang’s injunction said the government had taken actions to effectively waive several in-person requirements for dispensing other drugs, including opioids.
Justice Sonia Sotomayor took issue with that disparity in a dissent on Tuesday. “This country’s laws have long singled out abortions for more onerous treatment than other medical procedures,” she wrote, adding that the FDA’s rule imposes an “unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic.”
In a brief opinion concurring in the decision, Chief Justice John Roberts said the dispute was not generally about the right to abortion but rather courts’ deference to government decisions related to the pandemic.
The dispute centers on the FDA’s requirement that the drug mifepristone, one of two pills used to perform a medication abortion, be dispensed in-person by a certified prescriber. Medication abortions are approved through the first 10 weeks of pregnancy.
Groups representing tens of thousands of physicians, including the American College of Obstetricians and Gynecologists, sued the FDA in May saying that requiring in-person visits to pick up a pill needlessly exposes patients, doctors, and workers to a greater risk of contracting COVID-19.
The groups said this is especially true given that evaluations and counseling may be done through telemedicine and that the drug itself may be taken elsewhere.
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