Court Rejects Administration’s Request to Reinstate Rule Requiring People Seeking Early Abortion Care to Make an Unnecessary Trip to a Health Care Facility Just to Pick Up Medication During the COVID-19 Pandemic

WASHINGTON — A federal appellate court ruled against the Trump administration today, refusing the government’s request to stay a lower court’s injunction that prevents the U.S. Food and Drug Administration (FDA) from enforcing a restriction on a medication used for early abortion care that subjects patients to unnecessary COVID-19 risks. The case was brought by the American Civil Liberties Union on behalf of a coalition of medical experts and reproductive justice advocates, led by the American College of Obstetricians and Gynecologists (ACOG).

The suit challenges the FDA’s rule requiring that patients pick up a medication used for early abortion care in person at a hospital, clinic, or medical office — even when they have already been evaluated by a clinician using telehealth or at a prior in-person visit, and will be receiving no medical services at the time. In blocking this restriction last month, a federal district court in Maryland found that the rule presents “a serious burden to many abortion patients” by forcing them “to decide between forgoing or substantially delaying abortion care, or risking exposure to COVID-19 for themselves, their children, and family members.”

The medical community, including plaintiffs ACOG and the American Medical Association, which filed an amicus brief on behalf of the plaintiffs, opposes these restrictions because they are medically unnecessary and subject patients to needless COVID-19 risks and other harm. 

In July, the district court issued a preliminary injunction that prohibited the FDA from enforcing the requirement until at least 30 days after the end of the federal government’s declared public health emergency. The government had sought to put that injunction on hold while it appealed the case, a request the Fourth Circuit Court of Appeals rejected today, meaning that the in-person pick up requirement remains blocked. 

The injunction is particularly important for communities of color and low-income communities, who make up the majority of impacted patients and who are suffering severe complications and dying from COVID-19 at disproportionately high rates.

“Two federal courts have now confirmed what is plain common sense: Forcing patients to travel to a health care facility during a pandemic just to pick up a pill is unjustified and dangerous, particularly for communities of color,” said Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project. “As COVID-19 rages across the nation, it is unconscionable that the Trump administration is continuing its quest to subject abortion patients and their families to entirely needless viral risk. The administration should focus on getting COVID-19 under control instead of trying to score political points on the backs of people urgently seeking essential reproductive health care.”

The plaintiffs in this case are: ACOG, the Council of University Chairs of Obstetrics and Gynecology, New York State Academy of Family Physicians, SisterSong Women of Color Reproductive Justice Collective, and an individual family medicine physician. The lawsuit was brought by the ACLU and the law firm Arnold & Porter. 

The following are statements from the plaintiffs in this case:

Eva Chalas, M.D., FACOG, FACS, president of ACOG:

"Once again, the courts have recognized that medical evidence simply does not support the need for the FDA's in-person dispensing requirement for mifepristone, which is a safe medication that patients should be able to access without needlessly risking exposure to COVID-19. We hope that with this decision, the government will step aside from its pursuit of this punitive requirement and allow our members to prescribe safe, effective reproductive health care to their patients."

Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective:
“The Trump administration’s attempt to undo our court win is yet another attack on communities of color. No one should be forced to choose between getting the reproductive health care they need and risking exposure to COVID-19—and especially not people of color, who are already suffering the most harm from the pandemic and this administration’s disastrous response to it. We’re glad the court stepped in once again, but it shouldn’t have come to this. Our elected officials should trust us to make our own reproductive decisions and remove barriers that violate or prohibit our human right to self-determination.”

David Chelmow, M.D., president of the Council of University Chairs of Obstetrics and Gynecology:
“As Chairs of Ob-Gyn departments at medical schools and hospitals across the country, we know how critical it is for patients to get the care they need during this pandemic without being forced to engage in unnecessary and risky travel. We are very grateful to the court for protecting patients once again. We hope these baseless restrictions can be removed permanently.”

Jason Matuszak, M.D., FAAFP, president of New York State Academy of Family Physicians:
“New York has been a leader in combatting the pandemic because we have listened to medical expertise. We are pleased science and common sense have prevailed again in court and we sincerely hope the Trump administration drops this unjustified campaign so our patients can continue to get the care they need without exposing themselves to unnecessary medical risk.”  

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