Doctors allowed to continue prescribing abortion pill virtually after Supreme Court fails to rule
WASHINGTON, D.C., October 9, 2020 (LifeSiteNews) — The U.S. Supreme Court declined to immediately uphold Food and Drug Administration regulations on the abortion pill, allowing doctors to continue to prescribe it virtually.
The Trump administration had petitioned the high court to uphold the FDA medical safety standards requiring doctors prescribing the abortion pill to meet with patients in person first. The Supreme Court declined to grant the Trump administration its request.
The administration’s request came after a district court had issued an injunction that suspended the FDA’s authority to continue in-person requirements for prescribing the abortion pill mifepristone.
But rather than rule decisively, the Supreme Court indicated it required further action from the lower court, stating, “Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review.”
#SCOTUS tells Trump admin it will not act now on request to block lower-ct ruling that eased access to abortion pill during pandemic. Justices say they need "more comprehensive record." https://t.co/aYa48PGwEk— Amy Howe (@AHoweBlogger) October 8, 2020
Justices say they will hold govt's request to allow lower ct to consider a new motion by Trump administration to dissolve/modify or stay order. #SCOTUS tells dist ct to rule w/in 40 days. Alito dissents, joined by Thomas. https://t.co/MLzxkp6n8X— Amy Howe (@AHoweBlogger) October 8, 2020
“We are disappointed by the lack of a ruling. Chemical abortion poses serious complications for women that can include heavy bleeding, intense and prolonged pain, infection, and even death,” said Susan B. Anthony List President Marjorie Dannenfelser.
“Every day of delay is a day that unborn children and their mothers are at risk from these dangerous drugs,” continued Dannenfelser. “We thank the Trump administration for fighting for vitally important health and safety protections and are confident we will ultimately prevail.”
“Medical abortion is increasing as a percentage of all abortions for reasons that benefit abortion providers but there are distinct disadvantages for women. Medical abortion is far more likely to fail than surgical abortion, resulting in frequent complications and requiring surgical completion in one out of 20 women,” explained Dr. Ingrid Skop, M.D., F.A.C.O.G. at Faith and Law.
“Abortion advocates are aggressively working to remove FDA and legislative restrictions so that medical abortion can be provided without evidence based oversight,” said Skop. “These trends must be recognized and countered for the protection of American women.”
In their petition, “The American College of Obstetricians and Gynecologists, et al v the Food and Drug Administration, et al.” (ACOG v FDA), the ACOG challenged “the enforcement during the COVID-19 pandemic of certain FDA requirements relating to in-person dispensing ... for an oral medication used to induce an abortion or to manage a miscarriage.”
More specifically, the case concerns:
a nationwide injunction preventing the Food and Drug Administration (FDA) from enforcing, during the COVID-19 pandemic, its longstanding safety requirements for the dispensing of Mifeprex, a drug indicated for termination of pregnancy during the first ten weeks. Ever since the FDA approved the drug in 2000, the agency has required drug sponsors to ensure that Mifeprex or its generic equivalent (collectively, Mifeprex) is dispensed only by or under the supervision of a certified healthcare provider in a hospital, clinic, or medical office, and only after a patient signs a form acknowledging that she has been counseled about the drug’s risks. The FDA has made, and continuously adhered to, the judgment that these requirements mitigate serious health risks associated with the drug, which can increase if the patient delays taking the drug or fails to receive proper counseling about possible complications.
The district court here nevertheless enjoined the enforcement of those longstanding safety regulations on a nationwide basis for the pendency of the COVID-19 pandemic, holding they pose an undue burden on abortion access under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), because of the potential costs associated with visiting a clinic during the pandemic.
In a one-sentence order, the court of appeals declined to stay that injunction, thereby allowing a single district judge to dictate national safety requirements for medication abortion in the middle of the current public-health emergency.
Judge Samuel Alito, joined by Justice Clarence Thomas, offered a blistering dissent, noting that denying a stay “would highlight the inconsistency in the Court’s rulings on COVID–19-related public safety measures. In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies.”
“The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred,” he added.
Despite those broad, heavy-handed restraints, “a District Court Judge in Maryland took it upon himself to overrule the FDA on a question of drug safety. Disregarding THE CHIEF JUSTICE’s admonition against judicial second-guessing of officials with public health responsibilities, the judge concluded that requiring women seeking a medication abortion to pick up mifepristone in person during the COVID–19 pandemic constitutes an “undue burden” on the abortion right, and he therefore issued a nationwide injunction against enforcement of the FDA’s requirement,” wrote Alito.
“The judge apparently was not troubled by the fact that those responsible for public health in Maryland thought it safe for women (and men) to leave the house and engage in numerous activities that present at least as much risk as visiting a clinic—such as indoor restaurant dining, visiting hair salons and barber shops, all sorts of retail establishments, gyms and other indoor exercise facilities, nail salons, youth sports events, and, of course, the State’s casinos,” continued Alito. “And the judge made the injunction applicable throughout the country, including in locales with very low infection rates and limited COVID–19 restrictions.”
Alito concluded there was no reason for the high court not to rule.
“This case presents important issues that richly merit review. The District Court’s decision, if reviewed, is likely to be reversed. And if the FDA is right in its assessment of mifepristone, non-enforcement of the requirement risks irreparable harm. A stay is amply warranted,” he warned.
Notably, neither Justice Neil Gorsuch nor Justice Brett Kavanaugh – both appointed by President Trump – joined the dissent, leaving it unclear where they stand on loosening telemedicine abortion restrictions during the coronavirus outbreak.