Supreme Court reinstates FDA requirement that women undergoing chemical abortions first meet in-person with doctor

By Dave Andrusko

On Tuesday the Supreme Court granted the Trump administration’s request to reinstate the FDA rule requiring a woman to have an in-person doctor’s visit before she undergoes a chemical abortion during the COVID-19 pandemic.  The 6-3 decision came eight days before the end of President Trump’s term in office and is a tribute to his administration’s dogged determination to maintain safety protocols for women undergoing chemical (or “medication”) abortions.

This pro-abortion legal challenge, given the go ahead last July by U.S. District Judge Theodore Chuang, is to the FDA’s limits on who can dispense mifepristone, usually part of a two-drug abortion technique. (The FDA has had restrictions on the prescription of mifepristone since its original approval in September of 2000.)

Pro-abortionists are attempting to force the FDA to permanently cease its “Risk Evaluation Mitigation Strategy” which mandates that mifepristone can be dispensed only in clinics, medical offices and hospitals, by a “certified health care provider,” and only to patients who have signed an F.D.A.-approved patient agreement.

They are operating on two tracks—short and long term—to secure their end game: Do It Yourself abortions performed at home.

First, back in July they persuaded Judge Chuang to suspend the rule during the pandemic. 

Second, as Janita Kan wrote, “The American Civil Liberties Union (ACLU) is pushing for courts to permanently remove the restrictions, which they say ‘impose significant burdens on women seeking abortion with no medical basis.’”

Chief Justice John Roberts explained why the justices upheld the request to reinstate the FDA rule while it is being litigated in the 4th Circuit Court of Appeals.

“The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic. Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health’ [quoting himself from a prior 2020 Supreme Court decision].”

Justice Sonia Sotomayor dissented, joined by Justice Elena Kagan

Following Judge Chuang’s initial order, the case has bounced back and forth between courts for months, as NRL News Today has reported, as the Trump administration sought to have the injunction removed.

On October 8th, in a one-page opinion, the Supreme Court “said the government should first ask a federal trial judge in Maryland [Chuang] to consider modifying or lifting his order blocking the in-person requirement,” according to Bloomberg News’ Greg Stohr. “At the time, the justices said they weren’t making an assessment on the merits.” At the time there were only eight justices.

On December 9th, in a 34-page opinion, Judge Chuang, as expected, double-downed on his nation-wide injunction during the COVID-19 pandemic. The Trump administration again asked the U.S. Supreme Court to reinstate the  requirement.

Acting U.S. Solicitor General Jeffrey Wall wrote that

continued enforcement of FDA’s two-decades-old safety requirement during the pandemic does not create a substantial burden on abortion access, and is thus constitutional  under  the  framework  established  in  Planned Parenthood of Se. Pa. v. Casey.  The evidentiary  proceedings this Court  requested have made the district court’s earlier error especially stark,  and  highlight  the continuing need  for relief  from this Court.

As NRL News Today reported, the government’s position was backed by 11 states in an amicus brief filed in the 4th U.S. Court of Appeals. They argued that rules such as the requirement that mifepristone [the “abortion pill”] be dispensed only in a clinic, medical office, or hospital protects women’s health and “are not unduly burdensome even in the current public health emergency.“

“When a woman ingests mifepristone for the purpose of aborting a fetus, she not only ends the life of her unborn child, but also undergoes significant risks to her own body,” according to the brief. “Federal and state laws require physical examinations and in-person dispensing of mifepristone to ensure that physicians check for contraindications and that women fully understand the risks” [].”

In addition, last year more than 20 pro-life leaders, including NRL President Carol Tobias, wrote to the head of the FDA urging Dr. Stephen Hahn “to protect American women and preborn children by removing the abortion pill from the U.S. market.”

The letter thoroughly and systematically disputed the conclusion reached by Judge Chuang, an Obama appointee, that such self-administered abortions are safe.