The six conservative justices sided with the Trump administration and the FDA, with Chief Justice John Roberts writing a brief opinion.
“The question before us is not whether the requirements for dispensing mifepristone (the first part of the abortion pill process) impose an undue burden on a woman’s right to an abortion as a general matter,” Chief Justice Roberts opined. “The question is instead whether the District Court properly order the FDA to lift those established requirements because of the court’s own evaluation of the impact of the COVID-19 pandemic. 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.’
“In light of those considerations, I do not see a sufficient basis here for the District Court to compel the FDA to alter the regimen for medical abortion.”
The three liberal justices, led by Supreme Court Justices Sonia Sotomayor and Elena Kagan, dissented. Justice Steven Breyer also dissented, but did not join in the opinion written by Sotomayor.
“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the FDA’s in-person requirements for mifepristone during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose.
“One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times.”
Early during the COVID-19 pandemic, the American College of Obstetricians and Gynecologists (ACOG) and the American Civil Liberties Union (ACLU) challenged the FDA’s regulations surrounding the abortion pill, specifically the REMS or Risk Evaluation and Mitigation Strategies. This designation is only given to a handful of drugs that are considered highly dangerous if not managed properly.
Despite what Justice Sotomayor wrote, the abortion pill is both dangerous and not properly tested, and the desire to keep the drug on the market means that the vast majority of medical studies on the effects of the mifepristone remain insufficient and put women at risk.
The court’s decision here is correct, as the Supreme Court should have little to no influence on something as complex as abortion health care.