Superficially, the Supreme Court’s decision in FDA v. American College of Obstetricians and Gynecologists, which was delivered on Tuesday night, is much smaller.
The case involves a requirement by the Food and Drug Administration that a pill used in medical abortions should be distributed to patients directly by healthcare professionals and not by retail or mail order pharmacies. A court of first instance temporarily suspended this requirement during the pandemic; the Supreme Court decision effectively restores the requirement.
The Court did not issue a majority opinion, which means that the decision in American College it does not explicitly alter the existing legal doctrine. And the case concerns a policy that the Biden government could probably reverse after President-elect Joe Biden takes office.
Read between the lines, however, and American College warns of a bleak future for the right to abortion.
The premise of pro-abortion decisions as Roe v. Wade (1973) is that the Constitution offers special protection to the right to abortion that it does not offer to other elective medical procedures. However, as Judge Sonia Sotomayor explains in dissent, American College it effectively determines that a commonly used abortion drug can be regulated more severely than any other legal medication.
Although the court’s president, John Roberts, wrote an opinion explaining that he would decide the case on a very narrow basis – arguing that the courts should submit to public health agencies during the pandemic – no other majority judge adhered to that opinion.
For many years, Judge Anthony Kennedy – who normally voted to uphold abortion restrictions, but sometimes voted to overturn particularly aggressive attacks on reproductive freedom – maintained the balance of power between four judges who support abortion rights and four who stand oppose them. But Kennedy’s retirement in 2018 and the death of pro-choice judge Ruth Bader Ginsburg in 2020 – both Kennedy and Ginsburg were replaced by nominees from conservative Donald Trump – make it extremely likely that the Supreme Court will allow laws that effectively prohibit abortion.
American College it doesn’t go that far, but it is a sinister sign for anyone concerned with the right to terminate a pregnancy.
American College regards access to abortion during the pandemic
The specific problem in American College it involves mifepristone, part of a two-drug regimen that is used to induce abortion. Mifepristone causes the tissue inside the uterus to rupture and separate from the uterus itself. A day or two after taking mifepristone, the patient takes a medication called misoprostol, which causes the uterus to contract and expel its contents.
Although mifepristone is usually 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 at retail pharmacies or by mail order.
This limit on who can dispense with mifepristone has been in place for more than 20 years and is usually a much lower limit on the right to abortion. During the Covid-19 pandemic, however, it is potentially a significant burden on patients’ ability to terminate pregnancy.
In the midst of a deadly pandemic, any trip away from home – including a trip to an abortion clinic – can expose individuals to the coronavirus. In addition, as Judge Sotomayor explains in her dissent, “three-quarters of patients with abortion have low incomes, which makes them more likely to depend on public transport to get to a clinic to get their medication.”
This means that these patients “must take a greater risk of exposure while traveling, sometimes for several hours each way, to clinics often located away from their homes.”
In fact, largely due to concerns that patients who need to travel to get drugs may become infected with Covid-19, the FDA has eased many restrictions on prescription drugs as the pandemic worsens.
The federal government, notes Sotomayor, “urged health professionals and patients to take advantage of telemedicine”. He “waived many in-person drug delivery requirements because they could ‘put patients and other people at risk for coronavirus transmission,” “and he also waived certain mandatory tests that should normally be performed before certain drugs can be prescribed.
And yet, under the Trump administration, the FDA refused to relax restrictions on mifepristone. It even seems to have chosen mifepristone for a particularly restrictive treatment. As Sotomayor writes, “Of the more than 20,000 drugs approved by the FDA, mifepristone is the only one that the FDA requires to be collected in person for patients to take at home.”
It is because American College it is such a significant decision, even if it does not make any explicit changes to the Supreme Court’s legal doctrines that govern abortion. Instead of maintaining that abortion is a constitutional right with the right to special protection by the courts, the decision American College suggests that the government may treat abortion-related treatments more severely than any other medical treatment.
Most conservative judges did not explain their decision
Sotomayor’s dissenting opinion was united only by her and Judge Elena Kagan – although Judge Stephen Breyer, the Court’s third liberal judge, indicated that he would have left a lower court decision in effect that lifted the FDA restriction on who you can dispense with mifepristone.
Of the six conservative judges, only Supreme Court President John Roberts explained why he voted the way he did, and Roberts’ opinion, if it’s worth it, denies any suggestion of American College it is a broad attack on the right to abortion.
“The question before us is not whether the requirements to dispense mifepristone impose an undue burden on women’s right to abortion as a general matter.” Instead, Roberts writes, he believes that “courts owe significant deference to politically responsible entities with ‘history, expertise and experience to assess public health'” when deciding how the government should respond to the pandemic.
But Roberts is the most moderate member of the Republican majority at the Court. And his views matter much less than they used to, now that the majority of the Court is more conservative than he is. The five most conservative judges – a block of judges that is large enough to render binding decisions with or without Roberts – did not adhere to Roberts’ opinion or explain their votes otherwise.
Each of the five most conservative judges, however, signaled a desire to reverse abortion rights – or even to overturn Roe completely.
American Collegein other words, this Supreme Court’s last decision is unlikely to restrict reproductive choice.