Supreme Court revives abortion-pill restriction

In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John Roberts, who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the COVID-19 pandemic.”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Sotomayor wrote.

Judge Theodore D. Chuang, of the U.S. District Court in Maryland, had blocked the requirement in light of the coronavirus pandemic, saying a needless trip to a medical facility during a health crisis very likely imposed an undue burden on the constitutional right to abortion.

The case concerned a restriction on medication abortions, which are permitted in the first 10 weeks of pregnancy. About 60% of abortions performed in those weeks use two drugs rather than surgery.

The first drug, mifepristone, blocks the effects of progesterone, a hormone without which the lining of the uterus begins to break down. A second drug, misoprostol, taken 24 to 48 hours later, induces contractions of the uterus that expel its contents.

The contested measure requires women to appear in person to pick up the mifepristone and to sign a form, even when they had already consulted with their doctors remotely. There is no requirement that women pick up misoprostol in person, and it is available at retail and mail-order pharmacies.

The American College of Obstetricians and Gynecologists and other groups, all represented by the American Civil Liberties Union, sued to suspend the requirement that women make a trip to obtain the first drug in light of the pandemic.