The Supreme Court passed an order on Thursday evening that not so much resolves a significant battle over abortion as rather delays a decision. He has just postponed it for so long that the judges don't have to weigh up until after the election.
The FDA v. American College of Obstetricians and Gynecologists involves a dispute over whether it should be easier for abortion patients to get a pill that is used as part of a two-drug regimen to terminate a pregnancy. Mifepristone, the drug at the center of the American College, causes pregnancy tissues and the lining of the uterus to break down and separate from the uterus itself. About a day or two after taking mifepristone, the patient takes a second drug, misoprostol, which causes uterine contractions and expels the contents of the uterus.
The Food and Drug Administration (FDA) approved the use of mifepristone for this purpose in 2000. While patents often take the drug at home, the FDA requires them to pick up the drug at a hospital, clinic, or doctor's office not dispensed from a retail or mail order pharmacy.
Under normal circumstances, this is a relatively small burden on the ability of abortion patients to obtain an abortion. During a deadly pandemic, that requirement that patients receive mifepristone direct from their healthcare provider is significantly more onerous for a variety of reasons. Patients may be reluctant to travel to a clinic and risk infection, and many abortion providers are either closed or are working at reduced capacity to limit the spread of Covid-19 (or at least at the time the lower court order was made issued).
Accordingly, a lower federal court eased the FDA's usual restrictions on the supply of mifepristone for up to 30 days after the pandemic-triggered public health emergency ended.
As Judge Samuel Alito points out in a dissenting opinion at American College, this is precisely the case where Justice Colonel John Roberts – who is usually against abortion rights but also cast a surprising vote last June to support an anti-abortion law in Louisiana to block – They are usually expected to rule in favor of the Trump administration's motion, reinstating FDA restrictions on mifepristone.
In cases asking how public health officials should respond to the pandemic, Roberts has consistently insisted that courts should postpone these officials' verdict. For example, at the South Bay United Pentecostal Church v. Newsom (2020), Roberts broke with his conservative counterparts and allowed a California health policy that limits the number of people who could gather in a place of worship to remain in effect.
"The exact question of when restrictions on certain social activities should be lifted during the pandemic is a dynamic and fact-intensive one that is subject to reasonable disagreement," wrote Roberts in his statement on South Bay. He added that "our constitution primarily" (t) entrusts the safety and health of the people "to politically accountable officials of states" to protect and protect "".
Similar logic could easily be applied to the American College case, and could be applied to this case without even having to deal with the difficult legal and political issues surrounding the right to abortion. A court ordered health officials at the FDA to change the rules for a specific drug, citing the pandemic as a justification. But Roberts usually requires the courts to turn to such officials in pandemic-related cases.
Yet the court doesn't solve the case so much as to throw away a hot potato until the election is over. Citing unspecified concerns that "a more complete record would aid the review of this court," the American College of the Supreme Court order effectively returned the case to the lower court "for the district court to submit a government motion for dissolution and amendment can examine immediately or maintain the injunction, also on the grounds that the relevant circumstances have changed. "
The Supreme Court also ordered the lower court to "rule within 40 days of the government submission."
In other words, a majority in the court asked the lower court to take over. And it gave the district court just enough time for the election to be over if this case hits the judges again (and Supreme Court candidate Amy Coney Barrett is likely to be upheld). Only Judges Clarence Thomas and Alito publicly stated that they were departing from the American College Court's order, though it is possible that another judge could tacitly disagree.
There is no way of knowing for sure why the Court took this highly unusual move, but there is a cynical interpretation: at least some key members do not want to get caught up in a gigantic abortion controversy in the middle of a Supreme Court confirmatory presidential election.
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