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On the surface, the Supreme Court decision in FDA v American College of Obstetricians and Gynecologists, which was returned Tuesday evening, is quite minor.
The case involves a requirement by the Food and Drug Administration that a pill used in medical abortions be dispensed to patients directly by health providers, and not through retail or mail order pharmacies. A lower court temporarily suspended this requirement during the pandemic; the Supreme Court decision effectively reinstates the requirement.
The Court did not render a majority opinion, which means that the decision American college does not explicitly modify existing legal doctrine. And the case concerns a policy that the Biden administration could likely reverse after President-elect Joe Biden takes office.
Read between the lines, however, and American college warns of a bleak future for abortion rights.
The premise of pro-abortion decisions like Roe vs. Wade (1973) is that the Constitution grants special protection to the right to abortion that it does not grant to other elective medical procedures. Yet, as Justice Sonia Sotomayor explains on dissent, American college rule that a commonly used abortion drug can be more severely regulated than any other legal drug.
Although Chief Justice John Roberts wrote an opinion explaining that he would decide the case on very narrow grounds – believing that the courts should defer to public health agencies during the pandemic – no other majority judge did not agree with this opinion.
For many years, Judge Anthony Kennedy – who generally voted to retain abortion restrictions, but sometimes voted to end particularly aggressive attacks on reproductive freedom – maintained the balance of power between four judges who support the right to abortion and four who oppose it. But Kennedy’s retirement in 2018 and the death of pro-choice judge Ruth Bader Ginsburg in 2020 – Kennedy and Ginsburg have been replaced by staunchly conservative attorneys for Donald Trump – make it extremely likely that the Supreme Court will authorize laws that effectively prohibit abortion.
American college doesn’t go that far, but it’s a worrying sign for anyone who cares about the right to terminate a pregnancy.
American college concerns access to abortion during the pandemic
The specific problem American college involves mifepristone, which is part of a two-drug regimen used to induce abortions. Mifepristone causes tissue in the uterus to break down and separate the uterus itself. A day or two after taking mifepristone, the patient takes a medicine called misoprostol, which causes the uterus to contract and expel its contents.
While mifepristone is often taken at home, the Food and Drug Administration only permits distribution of the drug to hospitals, clinics, or other doctor’s offices. It is not available at retail or mail order pharmacies.
This limit on who can dispense mifepristone has been in place for over 20 years, and it is usually a fairly minor limit on the right to abortion. During the Covid-19 pandemic, however, there is potentially a significant burden on the ability of patients to terminate their pregnancies.
In the midst of a deadly pandemic, any travel outside the home – including a trip to an abortion clinic – can potentially expose individuals to the coronavirus. In addition, as Justice Sotomayor explains in her dissent, “three-quarters of abortion patients have low incomes, which makes them more likely to rely on public transportation to get to a clinic to collect their drugs.
This means that these patients “must bear an additional risk of exposure when they travel, sometimes for several hours in each direction, to clinics often far from their homes”.
Indeed, in large part due to fears that patients who must travel to take medicine could be infected with Covid-19, the FDA has relaxed many restrictions on prescription drugs for as long as the pandemic rages on.
The federal government, Sotomayor notes, “has urged health care providers and patients to take advantage of telemedicine.” He has “waived many in-person drug distribution requirements as they could ‘put patients and others at risk of transmitting the coronavirus”, “and he also waived some mandatory tests that would normally be performed. before certain drugs can be prescribed.
And yet, under the Trump administration, the FDA refused to ease restrictions on mifepristone. He even seems to have singled out mifepristone for a particularly restrictive treatment. As Sotomayor writes, “Of more than 20,000 FDA approved drugs, mifepristone is the only one that the FDA requires to be picked up in person for patients to take home.”
That is why American college is such an important decision, even if it does not make any explicit change to the Supreme Court’s legal doctrines governing abortions. Instead of considering that abortion is a constitutional right entitled to special protection by the courts, the decision American college suggests that the government can treat abortion-related treatments harsher than any other medical treatment.
Most Conservative Justices Didn’t Explain Their Decision
Sotomayor’s dissenting opinion was only joined by herself and Judge Elena Kagan – although Judge Stephen Breyer, the Court’s third liberal judge, said he would have left in place a decision of a lower court that suspended the FDA’s restriction on who can administer mifepristone.
Of the six Tory Justices, only Chief Justice John Roberts has explained why he voted the way he did, and Roberts’ opinion, for what it was worth, rejects any suggestion that American college is a broad attack on the right to abortion.
“The question before us is not whether the conditions of distribution of mifepristone place an undue burden on a woman’s right to abortion in general.” On the contrary, writes Roberts, he believes that “courts owe a great deal of deference to politically responsible entities having ‘the experience, skill and expertise to assess public health'” when deciding how government should respond to the pandemic.
But Roberts is the most moderate member of the Republican majority on the court. And his opinions matter a lot less than they used to, now that a 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 join Roberts’ opinion and did not otherwise explain their votes.
Each of these five most conservative judges, however, signaled a desire to roll back abortion rights – or even overturn. Roe deer downright.
American college, in other words, it is unlikely to be this Supreme Court’s latest ruling limiting reproductive choice.
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