The U.S. Supreme Court on Tuesday lifted a nationwide injunction that has prevented the Trump administration from enforcing a rule to regulate a pill commonly used in medication abortions, so the rule can now be enforced.
Since 2000, the Food and Drug Administration has said that Mifeprex, a drug used during the first ten weeks of pregnancy, must be given to a patient by a health care professional in a clinic, hospital, or doctor’s office. The patient must sign a form acknowledging that she has been counseled about the drug’s possible risks. The patient can take the pill any time after receiving it and does not have to swallow it in the presence of the health care professional.
A group of doctors, led by the American College of Obstetricians and Gynecologists, filed a lawsuit seeking to have the restrictions relaxed during the Covid-19 pandemic. Medical offices and clinics have either closed or restricted appointments, they said, and requiring pregnant women to make in-person visits exposes them to a heightened risk of infection.
Maryland District Court Judge Theodore Chuang agreed, ruling in July that keeping the FDA rule in the pandemic would “place a substantial obstacle in the path of women seeking a medication abortion and that may delay or preclude a medication abortion and thus may necessitate a more invasive procedure.” Instead, he said, the pills could be sent by mail.
His order stopped enforcement of the FDA rule nationwide, but he Supreme Court has now stayed that order, allowing the rule to be enforced.
Chief Justice John Roberts said this was not a case about whether the rule imposed an undue burden on a woman’s right to seek abortion. Instead, he said it was about a lower court’s authority to block rules during the pandemic. “The courts owe significant deference to the politically accountable branches” with the background to asses public health.
Writing for herself and Justice Elena Kagan, Justice Sonia Sotomayor said the majority of women seeking abortion care during the first 10 weeks of pregnancy rely on the medication at issue.
“The FDA’s policy imposes an unnecessary, unjustifiable, irrational, and undue burden on a women seeking abortion during the current pandemic,” Sotomayor wrote.
Justice Stephen Breyer also said he would have left the hold in place on the rule’s enforcement.
Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.