The Supreme Court on Tuesday granted the Trump administration’s request to reinstate long-standing restrictions for patients seeking to obtain a drug used for abortions early in pregnancy — with the three liberals dissenting in a potential preview of a new chapter in the court’s rulings on the procedure.
The order’s timing was a surprise, coming after close of business in the waning days of the Trump administration and ahead of Wednesday’s possible House impeachment vote.
It also marks the first abortion case to come before Justice Amy Coney Barrett, backing abortion rights supporters’ fears that she will move the court to the right in cases related to the divisive issue.
Federal courts, citing the Covid-19 pandemic, had previously blocked the enforcement of Food and Drug Administration rules that require an in-person visit with a medical professional to pick up the medication.
Tuesday, the Supreme Court said it believed the administration should be able to enforce the rule despite coronavirus concerns.
“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,'” Chief Justice John Roberts wrote in explaining his vote.
CNN contributor and law professor Steve Vladeck noted the ruling’s unusual timing and potentially profound implications for Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at about 24 weeks of pregnancy.
“Because the Biden administration is eight days away, the odds that this FDA rule is on the books that much longer seems pretty slim,” Vladeck said. “The much bigger import of tonight’s ruling is the harbinger it seems to provide of how the new conservative majority is going to approach abortion cases.”
In her dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, quoted an earlier opinion by the late Justice Ruth Bader Ginsburg, a staunch defender of abortion rights who Barrett replaced on the court.
“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,” Sotomayor wrote.
Sotomayor and Kagan signaled their hope that the Biden administration will “exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times.”
Court fight since summer
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, necessary for a pregnancy to continue.
After the lower court blocked the rule last summer, the administration asked the Supreme Court to step in, but an eight-member court declined to do so in October and sent the case back to the lower court.
In December, the lower court upheld its own injunction and the Trump administration came back to the Supreme Court, resulting in Tuesday’s ruling.
Tuesday’s order marks the second major abortion case the court has ruled on over the past several months after Roberts sided with the court’s then-four liberals to block a Louisiana abortion restriction in June. A slew of cases challenging abortion restrictions are in the pipeline for the court’s consideration. Though it has been rescheduled at least six times, the justices are slated to consider Friday whether to hear a case that could directly challenge Roe.
That case pertains to Mississippi’s ban on abortions later than 15 weeks into pregnancy, which Republican Gov. Phil Bryant signed into law in 2018. The law made exceptions only for medical emergencies or cases in which there’s a “severe fetal abnormality,” but not for incidents of rape or incest. A federal judge in Mississippi struck down the law in November 2018, and the 5th US Circuit Court of Appeals upheld the ruling late last year.