With Confirmation Hearings Imminent, Court Delays Ruling on Trump Administration Request to Subject Abortion Patients to Needless COVID-19 Risk

WASHINGTON — The Supreme Court tonight delayed ruling on the Trump administration’s request to reinstate a federal policy that endangers patients seeking early abortion care during the pandemic.

The U.S. Food and Drug Administration (FDA) policy requires patients seeking mifepristone, a medication used for early abortion care, to pick up the pill in person at a hospital, clinic, or medical office, even when the patient has 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. During the pandemic, this travel exposes patients to needless COVID-19 risks related to transportation, child care, and other interpersonal contact. Of the 20,000 drugs the FDA regulates, mifepristone is the only one that the FDA requires patients to pick up in person at a health center even though they may take it later at a time and place of their choosing.

Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project issued the following response:

“It is a relief that, for the next few weeks at least, the Trump administration cannot force patients seeking an early abortion to needlessly risk contracting a life-threatening disease as a condition of obtaining care. But when the president has vowed to appoint a new justice who will overrule Roe v. Wade, the fact that the Supreme Court decided to stay out of this particular fight for now is hardly an indication that the right to abortion is secure. Let’s be clear: The next justice confirmed to the court will dictate whether or not many people in this country can get a safe, legal abortion when they need one.”

Skye Perryman, chief legal officer of the American College of Obstetricians and Gynecologists, made the following statement:

"We are pleased the injunction blocking FDA’s medically unnecessary restriction will stay in place — for the time being. But it is disappointing that the Supreme Court is delaying a decision on whether it is appropriate to force clinicians who provide abortion and their patients to face potential coronavirus exposure by mandating in-person dispensing of mifepristone, despite earlier court findings that reflected the medical evidence and the constitutional rights of our patients. The in-person dispensing requirement is not grounded in science, it is not necessary for patient safety, and it is yet another example of women's health being held to a different standard than the rest of medicine."

In July, a federal district court ruled that the FDA must temporarily suspend its in-person requirements for the abortion medication because they “do not advance general interests of patient safety,” but rather put patients at needless “risk of contracting a highly dangerous disease” and “impose a substantial obstacle in the path of” patients seeking abortion care during the public health emergency. In August, an appellate court refused the Trump administration’s request to reinstate the requirement. With today’s decision from the Supreme Court, the in-person requirements will remain blocked for several weeks, after which the Supreme Court will reconsider the administration’s request.

The plaintiffs in the case are the American College of Obstetricians and Gynecologists, 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 litigation was supported by the American Medical Association.

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