With little fanfare, the U.S. Supreme Court's new conservative majority last month issued its first anti-abortion-rights ruling: The court upheld a federal requirement that women who seek medically induced abortions must obtain the medicine from pharmacies in person, rather than by mail, despite the potential pandemic dangers of that requirement. It's a minor case, but what it might foreshadow about this court's attitude toward abortion rights is chilling.
The case (FDA v. American College of Obstetricians and Gynecologists) arose last year when the Food and Drug Administration waived the in-person pickup requirement for other drugs due to the pandemic — but left that requirement in place for mifepristone, an abortion-inducement drug. When a lower court ruled that the abortion drug, too, should be made available through the mail, the Trump administration appealed to the Supreme Court to keep the in-person restrictions in place. In October, when the late Justice Ruth Bader Ginsberg's seat was still vacant, the court declined to hear the case. After installing conservative Justice Amy Coney Barrett, the administration asked the court to reconsider. It did, handing down its 6-3 decision on Jan. 12.
Having to pick up a drug in person isn't exactly a daunting requirement — even during the pandemic, it's necessary to go out into the world for all sorts of reasons — but that's beside the point. Roe v. Wade established a constitutional right to abortion, a right that other elective medical procedures don't have. Yet the court here allowed the FDA to put a more restrictive rule in place for the abortion drug than for other drugs. Why?
In her dissent, Justice Sonia Sotomayor noted the FDA's "unique treatment of mifepristone" during the pandemic, saying the FDA "waived in-person requirements for several other drugs, including certain controlled substances, but not for mifepristone." As a result, she noted, "Government policy now permits patients to receive prescriptions for powerful opioids without leaving home, yet still requires women to travel to a doctor's office to pick up mifepristone, only to turn around, go home, and ingest it without supervision."
How, exactly, does that makes sense — except as a deliberate governmental impediment to the constitutional right to abortion?
It would help to know thinking of the court's conservative bloc, but they've chosen not to share it. Only centrist Chief Justice John Roberts explained his vote with the majority, giving the ideologically neutral rationale that the court shouldn't substitute its medical judgment for that of the FDA. But none of the five-justice conservative bloc joined in that opinion, opting instead not to explain their votes restricting the drug.
Which would seem to indicate they had some other, unspoken rationale in mind. That should put advocates on alert. This time, it's an inconvenience against abortion rights. Next time, it could be a full-on assault.
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