On the surface, the Supreme Court's ruling in the FDA v American College of Obstetricians and Gynecologists, which came Tuesday night, is marginal.
The case includes a requirement by the Food and Drug Administration that a pill used in drug withdrawal must be distributed to patients directly by health care providers rather than retail or mail order pharmacies. A lower court temporarily suspended this requirement during the pandemic. With the decision of the Supreme Court, the requirement will come into effect again.
The court did not issue a majority opinion, which means that the American College decision does not specifically change existing legal doctrine. And the case concerns a policy the Biden administration could likely reverse after President-elect Joe Biden took office.
Read between the lines, however, and American College warns of a dark future for abortion rights.
The requirement for decisions about abortion rights like Roe v. Wade (1973) is that the Constitution provides special protection for the right to abortion that it does not provide for other elective medical procedures. But as Justice Sonia Sotomayor explains differently, the American College effectively decides that a commonly used abortion drug can be more strictly regulated than any other legal drug.
Although Chief Justice John Roberts drafted an opinion stating that he would rule the case on very narrow grounds – on the grounds that courts should defer public health authorities during the pandemic – no other majority majority supported that opinion at.
For many years, Justice held Anthony Kennedy, who normally voted for abortion restrictions but sometimes also for particularly aggressive attacks on reproductive freedom, the balance of power between four judges who support abortion rights and four who oppose them. But Kennedy's resignation in 2018 and the death of Ruth Bader Ginsburg in 2020 – both Kennedy and Ginsburg have been replaced by strictly Conservative Donald Trump candidates – make it extremely likely that the Supreme Court will pass laws that effectively ban abortion.
American College doesn't go that far, but it's a threatening sign to anyone who cares about the right to terminate a pregnancy.
American College concerns access to abortion during the pandemic
The specific problem at American College concerns mifepristone, part of a two-drug regimen used to induce abortions. Mifepristone causes tissues in the uterus to break down and separate from the uterus itself. A day or two after taking mifepristone, the patient takes a drug called misoprostol, which contracts the uterus and expels its contents.
While mifepristone is often taken at home, the Food and Drug Administration only allows the drug to be dispensed in hospitals, clinics, or other doctor's offices. It is not available in retail or mail order.
This restriction on who can dispense mifepristone has been in place for more than 20 years and is usually a relatively minor restriction on abortion rights. However, during the Covid-19 pandemic, this may place a significant strain on patients' ability to terminate their pregnancy.
During a deadly pandemic, any trip outside the home – including a trip to an abortion clinic – could potentially expose people to the coronavirus. In addition, as Justice Sotomayor explains in her dissent, "three quarters of abortion patients have low incomes, so they are more likely to rely on public transport to get to a clinic to collect their medication."
This means that these patients "have to bear a further risk of exposure if they sometimes travel several hours each way to clinics that are often far from their homes".
Indeed, not least due to fears that patients traveling to collect medication could become infected with Covid-19, the FDA has eased many prescription drug restrictions while the pandemic rages.
The federal government, said Sotomayor, "has urged health care providers and patients to take advantage of telemedicine." It has "waived many personal drug distribution requirements because they" could "put patients and others at risk for transmission of the coronavirus," and it has also waived certain mandatory tests that normally need to be done before certain drugs are prescribed can.
And yet, under the Trump administration, the FDA has refused to relax restrictions on mifepristone. It even appears to have chosen mifepristone for particularly restrictive treatment. As Sotomayor writes, "Of the more than 20,000 FDA-approved drugs, mifepristone is the only one that must be personally picked up by the FDA for patients to take at home."
This is why the American College is such an important decision, even if it does not make explicit changes to the legal doctrine of the Supreme Court on Abortion. Rather than claim that abortion is a constitutional right that deserves special protection from the courts, the American College ruling suggests that the government can treat abortion treatments tougher than any other medical treatment.
Most conservative judges did not explain their decision
Sotomayor's dissenting opinion was shared only between her and Justice Elena Kagan – although Justice Stephen Breyer, the court's third liberal justice, pointed out that he had made a lower court decision lifting the FDA's restriction on mifepristone dispensing has been.
Of the six Conservative judges, only Chief Justice John Roberts explained why he voted the way he did, and Roberts' opinion rejects any suggestion that the American College is a sweeping assault on abortion rights.
"The question before us is not whether the requirements for the dispensing of mifepristone place undue burden on a woman's right to abortion in general." Rather, Roberts writes that he believes that "the courts have great respect for politically accountable bodies with" the background, competence and expertise in public health assessment "in deciding how the government should respond to the pandemic .
Roberts, however, is the most moderate member of the Republican majority in the court. And his views are far less important than they used to be, as the majority of the court is more conservative than him. The five most conservative judges – a block of judges large enough to make binding decisions, with or without Roberts – did not share Robert's opinion or otherwise explain their voices.
However, each of these five most conservative judges has signaled a desire to roll back abortion rights – or even overthrow Roe for good.
In other words, the American College is likely not the final decision by this Supreme Court to limit choices of procreation.
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