The court rejected a Trump administration bid to reinstate a requirement that patients must visit a clinic or doctor’s office in person to obtain the pill.
It was the court’s first action on reproductive rights since the death of Justice Ruth Bader Ginsburg, and it amounted to a punt: The unsigned order called for a lower court judge to take another look at the issue and rule within 40 days, a deadline that falls after the presidential election.
Medication abortion, or the abortion pill as it is called colloquially, is actually a combination of two medicines, mifepristone and misoprostol. When taken together, they essentially induce a miscarriage. It is one of the most common methods used to end pregnancies in the U.S.
Women can take the pills in the privacy of their own home, at a time of their choosing, in the first 10 weeks of a pregnancy. These days, about 40% of abortions in the U.S. are done using medication.
Longstanding Food and Drug Administration regulations on mifepristone, called REMS, mandate that the drug can only be distributed by a health care provider in a medical setting. Patients must physically pick up the drug from a medical provider, even though they can swallow the pill at home. Under these rules, mifepristone cannot be dispensed at pharmacies or sent through the mail.
In May, reproductive health care providers, including the American College of Obstetricians and Gynecologists, sued the FDA to temporarily block the requirement that patients obtain medication abortion in person during the pandemic. They argued that the dispensing requirement puts patients and clinicians at unnecessary risk of contracting the virus. The lawsuit notes that of more than 20,000 FDA-approved drugs, mifepristone is the only one that patients must obtain in person in a clinical setting but are allowed to ingest elsewhere, unsupervised.
In July, U.S. District Judge Theodore Chuang issued a nationwide injunction against the FDA requirement, allowing women to get the abortion pill through the mail for the duration of the pandemic.
“The In-Person Requirements, combined with the COVID19 pandemic, 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,” Chuang wrote. “Particularly in light of the limited timeframe during which a medication abortion or any abortion must occur, such infringement on the right to an abortion would constitute irreparable harm.”
In August, the U.S. Court of Appeals for the 4th Circuit rejected the FDA’s request to put Chuang’s order on hold while the FDA appealed. The Trump administration then went to the Supreme Court.
Medication abortion has emerged as a new battlefront as reproductive rights groups push for increased access, while conservatives are trying to scale it back.
“It is a relief that, for the next few weeks at least, the Trump administration cannot force patients seeking an early abortion to needlessly risk contracting a life-threatening disease as a condition of obtaining care,” said Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project, in a statement. “But when the president has vowed to appoint a new justice who will overrule Roe v. Wade, the fact that the Supreme Court decided to stay out of this particular fight for now is hardly an indication that the right to abortion is secure.”
The FDA restrictions on medication abortion are not grounded in science, said Skye Perryman, chief legal officer of the American College of Obstetricians and Gynecologists, in a statement.
Research has shown that medication abortion is safe and effective. Over 3.7 million women have used it to end their pregnancies since its approval.
“The in-person dispensing requirement… is not necessary for patient safety, and it is yet another example of women’s health being held to a different standard than the rest of medicine,” Perryman said.
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