The Supreme Court Just Punted on Its First Abortion Case Since RBG Died

The Supreme Court on Thursday refused to reinstate restrictions on a pill used to induce abortions, in a 6-2 decision that both denied the Trump administration a win on abortion and let the nation’s highest court largely avoid a controversial case just weeks ahead of the presidential election.

The Trump administration spent the summer and early fall locked in a legal battle over mifepristone, one of two drugs typically used to induce a medication abortion. For years, the Food and Drug Administration has required that people undergoing a medication abortion pick up mifepristone in person from a provider’s office, even if they’ve already seen a doctor about getting an abortion.

But in May, the ACLU teamed up with the American College of Obstetricians and Gynecologists, as well as a handful of other groups, to challenge that restriction. The lawsuit accused the FDA and the Department of Health and Human Services of jeopardizing public health by forcing people who want abortions to travel in the middle of the coronavirus pandemic, even as providers who perform other kinds of medical care were encouraged to use tele-health options.

Medication abortion, which can be used to end pregnancies that are less than 10 weeks along, is extremely popular: It accounted for 39 percent of all U.S. abortions in 2017, according to the Guttmacher Institute, which studies abortion restrictions. In 2018, a landmark report from the National Academies of Sciences, Engineering, and Medicine concluded that the procedure is overwhelmingly safe, even when providers prescribe patients abortion-inducing pills remotely. The risk of undergoing a medication abortion remotely, the report found, is akin to taking “commonly used prescription and over-the-counter medications.”

In July, U.S. District Judge Theodore Chuang sided with the ACLU and ACOG. Ruling that the FDA restrictions likely created an unconstitutional barrier on people who were trying to get abortions, Chuang issued a nationwide injunction that suspended the restrictions throughout the pandemic.

That’s when the Trump administration asked the Supreme Court to weigh in and stay the injunction. In its brief to the justices, the administration argued that the FDA restrictions were fine because people can just get surgical abortions instead. (In the first few months of the pandemic, even that option was in question: Officials in several states cited the coronavirus as a reason to force abortion clinics to stop offering the procedure.)

The ACLU was less than convinced by the administration’s logic. In its responding brief, the civil rights organization pointed out that invasive surgical abortions would likely amplify patients’ chances of catching COVID-19.

Many abortion patients are also already at higher risk of COVID-19, the brief pointed out. They tend to be low-income, which means they’d likely have to rely on public transportation to travel to an abortion clinic—which could be located hours away and, because of the pandemic, have diminished operating hours. Most abortion patients also already have one child, so they’d likely need to invite someone into their home to provide child care. Abortion rates are also higher among women of color; people of color are more likely to have preexisting health conditions and face a greater risk of becoming seriously ill or dying of COVID-19. Both low-income people and people of color are also more likely to live in intergenerational households with elderly people, who are especially vulnerable to COVID-19, according to the brief.

In a one-paragraph, unsigned order Thursday evening, the justices told the Trump administration that it would not lift Chuang’s injunction—for now. Instead, they instructed Chuang to consider the administration’s request that he “dissolve, modify, or stay the injunction,” and to issue a new ruling within 40 days.

“A more comprehensive record would aid this court’s review,” the justices wrote, adding that they were not making a decision on the merits of the case.

Justices Samuel Alito and Clarence Thomas both dissented from that order. In an opinion joined by Thomas, Alito wrote that he saw no meaningful difference between the Supreme Court’s new order and the injunction issued by Chuang, because the FDA restrictions are still on pause.

Alito also suggested that Chuang was taking advantage of the coronavirus crisis to push a political agenda. Chuang, Alito wrote, “saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade.”

The case marks the first time the justices have touched abortion rights since Justice Ruth Bader Ginsburg, the trailblazing feminist and de facto leader of the court’s liberal wing, died in mid-September. Her death has stoked fear among abortion rights supporters that Roe, which legalized abortion nationwide in 1973, may soon be overturned.

Republicans are now attempting to rapidly replace Ginsburg with Judge Amy Coney Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, ahead of the election. Barrett has repeatedly suggested that she does not personally support abortion.

A hearing on her confirmation is set to begin in the Senate Judiciary Committee on Monday.

Cover: In this Wednesday, March 4, 2020 file photo, abortion rights demonstrators rally outside the Supreme Court in Washington. (AP Photo/Jacquelyn Martin File)