Supreme Court rules Trump administration can enforce rule requiring abortion pills be obtained in person

The Supreme Court on Tuesday ruled that the Trump administration could enforce a rule requiring that abortion pills be obtained in person at approved health care facilities and not through the mail or delivery — even during a pandemic.

Lower courts had previously sided with the American Civil Liberties Union (ACLU), which sued the Trump administration last year, arguing the longstanding Food and Drug Administration (FDA) rule endangered the health of individuals seeking mifepristone, a medication abortion pill, during the pandemic. 

For a brief few months, people seeking abortion pills were able to get them through mail or delivery, including through mail-order pharmacies. 

But the Supreme Court’s 6-3 ruling Tuesday puts an end to that, with Chief Justice John Roberts writing in the majority opinion that deference should be given to political agencies.  

“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,” Roberts wrote.  

The requirement that mifepristone be dispensed in person has been in place since the FDA approved the pill in 2000. 

The ACLU, representing the American College of Obstetricians and Gynecologists (ACOG) and other groups, sued the Department of Health and Human Services and the FDA in May, challenging the enforcement of the rule during the pandemic. 

The abortion pill is typically used to end early stage pregnancies. ACOG and other expert groups have long argued that the pill is safe and does not require in-person dispensing to patients.  

U.S. District Judge Theodore Chuang ruled last year that the FDA should pause enforcement of the requirement, citing the risk posed by COVID-19.  

The Trump administration appealed, arguing the requirements were necessary.  

Roberts wrote in his opinion: ”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.’ ”

Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer dissented, noting that the FDA has waived in-person requirements for other drugs, including controlled substances.

“As a result, government policy now permits patients to receive prescriptions for powerful opioids without leaving home, yet still requires women to travel to a doctor’s office to pick up mifepristone, only to turn around, go home, and ingest it without supervision,” Sotomayor wrote in the dissent.  

“Because the FDA’s policy imposes an unnecessary, unjustifiable, irrational and undue burden on women seeking an abortion during the current pandemic, and because the government has not demonstrated irreparable harm from the injunction, I dissent,” she wrote.