The post-Ginsburg Supreme Court's first abortion case
In the wake of Justice Ruth Bader Ginsburg's death, millions of Americans wondered what the future of abortion access might look like. They won't wait long to find out.
Any day now, the current eight-justice Supreme Court is expected to issue its first decision on abortion access. The case, Food and Drug Administration v. American College of Obstetricians and Gynecologists, considers abortion via pill and whether patients, in the midst of a deadly pandemic, should still be required to make an in-person trip to a doctor's office in order to receive the medication.
In front of the high court is whether to reverse lower courts' preliminary injunctions that have temporarily suspended the FDA's in-person rule.
Though the case doesn't directly challenge Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, it promises to alter the way patients access the procedure and offers a glimpse into the future of a post-Ginsburg court.
"It's clear that the future to the right to abortion is in serious peril, and our ability to get a safe, legal abortion is likely dependent on the next justice confirmed to the court," Julia Kaye, an attorney with the American Civil Liberties Union and lead counsel challenging the FDA's regulation, said Friday in a telephone interview with CBS News.
At the outset of the coronavirus pandemic, the American College of Obstetrics and Gynecologists (ACOG), a professional medical organization, requested that the FDA lift a long-standing requirement that mifepristone (also sold as Mifeprex), the first pill of two used to induce a medication abortion, be dispensed by a doctor in-person. ACOG, which represents 90% of physicians in the field, argued that not only was the in-person requirement medically unnecessary, but in the context of the COVID-19 pandemic places patients and medical staff at risk of exposure to the virus.
When the FDA rejected the request, ACOG and a coalition of medical organizations sued, and in July a federal court agreed, granting the groups a preliminary injunction and temporarily suspended the FDA's in-person rule. In his decision, Judge Theodore D. Chuan wrote that the regulation, in the context of a pandemic, presented a "serious burden to many abortion patients." The Trump administration appealed, and in August an appellate court unanimously declined the administration's request to reverse the lower court's decision. Two weeks later, the Trump administration went to the Supreme Court, asking for it to block the lower courts' orders.
In that request, attorneys for the FDA wrote that the drug used in medication abortion "carries serious risks, including bleeding requiring surgical intervention... and that in-person dispensing mitigates those risks."
Use of the medication has steadily increased since it was first approved by the FDA in 2000, and it now accounts for nearly 39% of all abortions in the United States, according to data from the Guttmacher Institute, a research organization that supports abortion rights. When used within the first nine weeks of pregnancy, medication abortion works as directed 99.6% of the time, has a 0.4% rate of major complications and an associated mortality rate of less than 0.001%, according data compiled by the Kaiser Family Foundation.
Multiple medical professional groups have voiced their support for ACOG's request to suspend the in-person pill delivery requirement. In an amicus brief filed to the Supreme Court, attorneys representing 18 such groups, including the American Medical Association, wrote "medication abortion is a safe and effective treatment" and "the government's job is not to turn back the clock on medical practice, let alone in a global pandemic."
A spokesperson for the Food and Drug Administration did not return an email and voicemail requesting comment.
Senator Ted Cruz and 19 other Republican Senators last month called the lower courts' decisions in the case "rogue activism" and applauded the FDA's "zealous fight" to maintain the regulations amid the coronavirus pandemic. In a letter to the FDA, the conservative lawmakers also called for the agency to remove the abortion pill from the U.S. market entirely, writing that "pregnancy is not a life-threatening illness." The comment riled women's rights groups, who noted that the United States' maternal mortality rate is among the highest of developed countries.
The Supreme Court's eventual decision in this case may be a harbinger for how the court will view abortion rights in the absence of one of its fiercest supporters, Justice Ginsburg. Three abortion-related cases — including Mississippi's ban on abortion after 15 weeks of pregnancy — have reached the Supreme Court and the justices could decide to hear arguments on them as soon as next year's term. Another 17 are one step away.