In an unsigned order, the court left in place a lower court ruling blocking, due to health concerns from the Covid-19 pandemic, Food and Drug Administration rules that require an in-person visit with a medical professional to pick up the medication. The contested regulation concerns mifepristone, the first of two drugs typically taken several days apart to end an early pregnancy.
The order is a loss — for the moment — for the Trump administration, which had asked the justices to step in. Instead, the court said it would not rule definitively on the controversial case but asked the lower courts to continue to consider the issue, meaning it will likely percolate back to the Supreme Court later this year. Presumably, President Donald Trump’s nominee, Judge Amy Coney Barrett, will be on the bench at that time.
The case had been pending an unusually long time at the court — since before the mid-September death of Justice Ruth Bader Ginsburg — and suggests the justices had struggled behind the scenes with how to resolve their differences.
“We can’t know for sure, but the unusual disposition and the fact that it took so long seems to suggest the possibility that the court was divided 4-4 on whether to grant or deny the Trump administration’s application — and that not ruling one way or another was a compromise between the progressive justices and at least two of the Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Brett Kavanaugh,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“Here, for the first time, we have a case in which Justice Ginsburg’s passing seems to have directly affected the outcome — and also one that, by the time it comes back, may rest on the tiebreaking vote of a Justice Barrett.”
Alito and Thomas dissent
Justice Samuel Alito, joined by Justice Clarence Thomas, wrote an angry dissent –the second time in recent weeks the two have lashed out over court activity on sensitive cultural issues.
Arguing that there was “no legally sound reason” for the court to dodge the issue, Alito said the court’s ruling, “for all practical purposes” expressly denies the government’s emergency request.
Alito suggested that the majority had chosen not to issue a straightforward denial because such an order would “highlight the inconsistency in the court’s rulings on Covid-19 related public safety measures.” He noted that in other pandemic related instances the court — and Roberts specifically — has deferred to officials with public health responsibilities in determining how to rule.
Roberts in May voted to allow a California rule that restricted in-person attendance in places of worship during the pandemic.
Alito said the lower court judge who initially blocked the FDA rule “saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade.”
He then turned more broadly to how state and local officials have been dealing with Covid-19.
“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,” he said.
The Court’s order is a victory, though potentially shortlived, for the American Civil Liberties Union, representing the American College of Obstetricians and Gynecologists and other groups that argued that the FDA rules served no medical purpose and forced patients to make an unnecessary trip during the pandemic.
“It is a relief that, for the next few weeks at least, the Trump administration cannot force patients who need an early abortion to needlessly risk contracting a life-threatening disease as a condition of obtaining care,” Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project, said in a statement acknowledging the case’s potentially uncertain future.
Judge Theodore D. Chuang, of the US District Court for the District of Maryland noted that physicians had attested that they could use telemedicine in order to reduce the burden and risk to patients from travelling during the pandemic. The doctors said that the drug could be “safely and promptly” delivered by mail or delivery service and that the In-Person Requirements are medically unnecessary. “
“Of the more than 20,000 FDA approved drugs, mifepristone is the only medication that the FDA forces patients to pick up in person in a clinical setting even though patients are permitted to swallow it at home without clinical supervision,” Kaye said at the time. “It is no surprise that the medical community opposes this senseless and harmful requirement especially given the life threatening risks it imposes on the pandemic.”
An attorney for the Trump administration highlighted to the court that the restrictions had been in place since the FDA first approved the drug in 2000.
“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,” Acting Solicitor General Jeff Wall told the court.
Major medical groups, including the American Medical Association filed briefs with the Supreme Court in favor of the ACLU’s position. Arguing that the country is facing an “unprecedented public health crisis” their lawyers noted that the FDA had relaxed in-person treatment requirements for other medications so that practitioners “using their clinical judgment” would be able to provide the medications via telemedicine “so that their patients can stay closer to home and avoid travel.”