Federal court upholds block on in-person medication abortion requirements

A federal court has upheld its block on in-person requirements for medication abortion seekers after the Supreme Court returned the case to the lower court in October.

The lawsuit concerns a rule requiring abortion seekers to visit health care providers in person to acquire one of the pills for medication abortions, which the Food and Drug Administration does not require to be taken while in the presence of the health care provider. Abortion rights advocates say the rule should be loosened in light of the ongoing coronavirus pandemic.

“Particularly in light of the substantial spread of COVID-19 in recent weeks that increases the risk of all travel,” Judge Theodore D. Chuang, of the US District Court for the District of Maryland, wrote Wednesday, “the Court does not find that any changes to economic conditions or access to medical facilities, childcare, or transportation since the issuance of the (prior block on the rule) have been so favorable as to constitute changed circumstances” to warrant altering it.

CNN has reached out to the Justice Department for comment.

The district court’s order comes after several states moved to restrict abortion access during the pandemic and as all eyes are on the high court’s newest member, Justice Amy Coney Barrett, in anticipation of a potential abortion challenge that could have seismic implications on access to the procedure.

Medication abortion, a nonsurgical procedure effective until about 10 weeks into a pregnancy, typically entails taking two drugs several days apart. The contested regulation concerns mifepristone, the first drug, which works to block the hormone progesterone that is necessary for a pregnancy to continue.

The FDA information page on mifepristone states that the drug “may only be dispensed in clinics, medical offices, and hospitals by or under the supervision of a certified healthcare provider,” but does not specify where the patient must take it. The second drug taken in a medication abortion, misoprostol, causes cramps and heavy bleeding as the uterus expels its contents. It can be taken “at a location appropriate for the patient,” according to the FDA.

Several reproductive health groups, represented by the American Civil Liberties Union, sued the FDA in May over the long-standing requirement, arguing that it was unconstitutional for the agency to maintain the rule for the abortion drug while lifting it for other drugs in light of the pandemic.

The Trump administration asked the Supreme Court in August to reinstate the rule. In October, the high court issued an unsigned order placing the government’s request on hold “to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the (block), including on the ground that relevant circumstances have changed.”

In court filings later that month, the Trump administration asserted that the “changes in the circumstances of this pandemic have removed or significantly mitigated the burdens on abortion access that the Court identified in its July 13 opinion.”

Covid-19 cases, hospitalizations and deaths have soared in recent days. Wednesday saw a record 106,688 patients in hospitals, according to the COVID Tracking Project, and the US has averaged 206,191 new cases a day over the past seven days, according to Johns Hopkins University’s data — the country’s highest average in the pandemic so far.

The country’s average number of daily coronavirus deaths across a week — 2,230 — is close to the highest-ever average of 2,241 recorded on April 24, Johns Hopkins University data shows. In total, more than 289,000 people in the US have died of the virus.

Chuang addressed the worsening pandemic in his order on Wednesday,

“The evidence establishes that since the Court granted the (prior block) on July 13, 2020, this health risk has only gotten worse,” he wrote, reiterating that “where abortion patients in the United States are disproportionately low-income and women of color, the ongoing health risks from exposure to COVID-19 are even more pronounced.”

Julia Kaye, staff attorney with the ACLU Reproductive Freedom Project, called the Trump administration’s assertions on Covid “violently out of touch with reality.”

“The Trump administration’s claim that COVID-19 is no longer a serious threat would be laughable if it weren’t so cruel,” she continued in a statement. “It’s past time the outgoing administration accept defeat—and the FDA turn its attention to a long overdue, comprehensive review of its unnecessary and harmful restrictions on this safe medication used for abortion and miscarriage care.”