The Supreme Court is already considering another threat to abortion rights

Last June, Chief Justice John Roberts provided a brief reprieve to abortion providers — joining his liberal colleagues in striking down a Louisiana anti-abortion law. But that reprieve could be very short-lived: A case now before the justices could give them a vehicle to undercut the right to terminate a pregnancy.

If the Trump administration gets its way in Food and Drug Administration v. American College of Obstetricians and Gynecologists, the Supreme Court could force many patients seeking abortions to undergo unnecessary surgeries, despite the fact that those patients could safely terminate their pregnancy with medication — and that’s assuming that these individuals are able to find a doctor to perform the surgery in the first place.

The case turns on whether the courts should relax long-standing FDA-imposed restrictions on the drug mifepristone, which is commonly used in medication abortions, in order to make the drug easier to obtain during the Covid-19 pandemic.

In the short term, a victory for the Trump administration would leave in place long-standing rules requiring health providers to dispense mifepristone to abortion patients in person. During ordinary times, this restriction imposes a fairly minor burden on such patients. But, as explained below, the same restriction could potentially prevent many pregnant individuals from obtaining an abortion altogether while the pandemic still rages.

Any time the Roberts Court hears an abortion case, moreover, the abortion right is at risk — because a majority of the Supreme Court is skeptical of whether that right should exist in the first place. Indeed, if the Court follows the path laid out in the Trump administration’s brief in American College, many abortion patients could lose access to the safest form of abortion.

Roberts’s decision to invalidate the Louisiana law in June Medical Services v. Russo (2020) was a somewhat surprising development, as Roberts has fairly consistently opposed abortion rights during his career on the bench. But June Medical was also a very narrow victory for abortion advocates.

The chief justice’s opinion turned on the fact that the Louisiana law at issue in June Medical was nearly identical to a Texas law the Court struck down just four years earlier. Roberts spent much of his June Medical opinion explaining why he disagrees with many of his Court’s decisions protecting abortion, and even dropping hints about how anti-abortion advocates can help undermine abortion rights in the future.

June Medical, in other words, turned out the way it did because abortion opponents brought the weakest possible case to the Supreme Court — a case that was in all relevant respects indistinguishable from another case that the Court recently decided. The new case pending before the justices, Food and Drug Administration v. American College of Obstetricians and Gynecologists, does not suffer from similar weaknesses.

There are several reasons to suspect that Roberts will return to his anti-abortion roots in American College. Even if this were not an abortion case, and even if Roberts were not typically opposed to abortion rights, Roberts has urged courts to defer to public health officials during the pandemic. He’s unlikely to support a lower court decision that disagreed with the FDA’s judgment regarding a drug used in abortions.

And, with four other anti-abortion justices on the Supreme Court, if Roberts does flip back to the anti-abortion side in American College, that will almost certainly be enough to form a majority.

What’s at stake in American College?

Mifepristone, the drug at the center of American College, is part of a two-drug regimen used to induce abortion. Mifepristone causes pregnancy tissue and the lining of the uterus to break down and separate from the uterus itself. About a day or two after taking mifepristone, the patient takes a second drug, misoprostol, which causes uterine contractions and expels the uterus’s contents.

Although patients may take mifepristone at home, the FDA only permits this drug to be distributed at hospitals, clinics, or medical offices — meaning that it cannot be dispensed by a retail or mail-order pharmacy. Thus, at a time when many health providers are moving toward telemedicine to protect themselves and their patients from the coronavirus, abortion providers and their patients must risk in-person contact.

The limit on who can dispense the drug stretches back to when mifepristone was originally approved by the FDA in 2000, while Bill Clinton was president. The FDA also reviewed its restrictions on mifepristone in 2011, 2013, and 2016 — all during the Obama administration — and it left the requirement that the drug be dispensed by health care providers in place.

But while this requirement imposes a relatively minor burden on people seeking abortions during normal times, it is significantly more burdensome during the coronavirus pandemic. Many clinics have either closed or reduced the number of patients who are allowed to visit, in order to reduce the spread of Covid-19. But that means that fewer patients are able to obtain mifepristone at those clinics.

Meanwhile, patients may be afraid to travel to a clinic — especially if they rely on public transportation — because of the risk that they could be exposed to the coronavirus during this trip. As one expert witness testified in the American College case, the requirement that drugs be dispensed in-person “unnecessarily increases the infection risk for patients, their families, health care professionals, and the larger communities in which they work and live.”

The FDA, moreover, has relaxed similar restrictions on other drugs unrelated to abortion during the pandemic, but it has not made such accommodation for mifepristone. As the plaintiffs note in their brief, the FDA has taken “‘extraordinary actions’ to reduce viral transmission by suspending in-person requirements for drugs, including potentially lethal controlled substances like opioids, and urging the use of telemedicine ‘whenever possible.’” Yet it’s left the in-person dispensing restriction in place for mifepristone.

In light of all of these factors, a federal trial court held that the requirement that mifepristone must be dispensed in-person to patients by health providers should be suspended until 30 days after the end of the public health emergency triggered by Covid-19.

“The In-Person Requirements impose a substantial obstacle to abortion patients seeking medication abortion care,” wrote Judge Theodore D. Chuang. As Chuang noted, the dual barriers raised by the pandemic and the in-person requirements “delay abortion patients from receiving a medication abortion, which can either increase the health risk to them or, in light of the ten-week limit on the Mifepristone-Misoprostol Regimen, prevent them from receiving a medication abortion at all.”

After a federal appeals court refused to block Judge Chuang’s order, the Trump administration went to the Supreme Court, seeking a stay of that order. And, if that stay is granted, it could send a very clear signal to lower court judges that the right to an abortion should not be robustly enforced.

The Trump administration says it’s fine to restrict medication abortions so long as patients can have unnecessary surgeries

The low-water mark for abortion rights, at least after Roe v. Wade (1973), was the Supreme Court’s 2007 decision in Gonzales v. Carhart.

Prior to Gonzales, the Court applied a strong presumption against abortion restrictions that might endanger patient health. As the Court held in Stenberg v. Carhart (2000), “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” a ban on a particular abortion procedure must “include a health exception when the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’”

But Gonzales upheld a federal ban on an abortion procedure known as intact dilation and extraction, despite the fact that the federal ban did not include an exception protecting “the life or health of the mother.” Rather, Gonzales held that state and federal lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

Thus, if physicians disagree about whether intact dilation and extraction is ever necessary to protect the health of a patient, Congress can resolve this disagreement in favor of a ban on the procedure.

Significantly, Gonzales also noted that the ban on intact dilation and extraction did not prohibit another “commonly used and generally accepted method” of abortion that could be used as an alternative to intact dilation and extraction. Thus, the Court reasoned, a ban on this one particular method of abortion “does not construct a substantial obstacle to the abortion right” because patients could still obtain a different form of abortion.

The Trump administration wants to turn this line in Gonzales into a rule that would block many abortion patients from obtaining the safest method of abortion. According to the Trump administration’s brief, restrictions on the use of mifepristone are appropriate — even if those restrictions effectively prevent many pregnant individuals from receiving a medication abortion altogether — because these patients could still have surgical abortions.

The in-person dispensing requirement, the Trump administration argues, has “no effect on the availability of surgical abortions, a method that this Court has treated as safe for women.” Thus, they claim, the fact that another (far more invasive) means of obtaining an abortion is available means that the FDA is free to impose restrictions on medication abortion. So long as surgical abortions are available, the American College plaintiffs cannot attack restrictions on medical abortion “simply because [they] would prefer another alternative.”

That’s an aggressive reading of the Court’s decision in Gonzales. As the plaintiffs explain in their brief, the thrust of their case is that “patients incur grave COVID-19 risk by engaging in unnecessary travel and physical proximity to other people as a condition of obtaining” a medication abortion. But those same patients face even more risk if they are forced to “travel to a health center for a more invasive procedure” such as a surgical abortion.

And that’s assuming that these patients are even able to obtain a surgical abortion in the first place. Many clinics are already operating at reduced capacity due to the pandemic and have reduced the number of surgeries they perform as a result. These already stressed clinics are unlikely to be able to accommodate a rush of patients seeking surgeries in lieu of a medication abortion.

Nevertheless, it’s likely that this Supreme Court — with its conservative Republican majority — will, at the very least, give very serious consideration to the Trump administration’s arguments.

Moreover, when the administration seeks a stay of a lower court order, the justices typically decide whether to grant that request fairly quickly, and without oral arguments or full briefing. That means that the Court could potentially hold that the government may block patients from receiving medication abortions — and force these patients to have more invasive surgical procedures or to give up their right to terminate their pregnancy — as soon as this week.

Roberts is likely to uphold the restrictions on mifepristone, but it’s unclear if he’ll go as far as the Trump administration wants him to go

In June Medical, the four most conservative justices all voted to uphold Louisiana’s attempt to shut down many of its abortion clinics. Those four justices are almost certain to support additional restrictions on the right to an abortion. Meanwhile, the four liberal justices are typically fairly protective of abortion rights.

That leaves Roberts, who almost always votes with his conservative colleagues in abortion cases (among other things, Roberts joined the majority in Gonzales), as the closest thing to a swing vote in American College.

There’s good reason to believe that Roberts is likely to uphold the in-person restrictions on mifepristone. Indeed, there’s good reason to believe that Roberts is likely to uphold any similar restriction on a drug, regardless of whether that drug is used in abortions.

For one thing, Roberts has advised courts to defer to public health officials during the Covid-19 pandemic, even when those officials take steps that implicate constitutional rights. In South Bay United Pentecostal Church v. Newsom (2020), Roberts broke with his fellow conservatives to uphold a California public health order limiting the number of people who could gather in a place of worship.

“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts wrote in his South Bay opinion. He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”

A similar logic could apply in American College. That is, the task of determining whether it is safe to obtain mifepristone via a mail-order pharmacy, or some other method, is left to the FDA. And, if plaintiffs disagree with that judgment, courts should defer to the FDA.

Roberts, moreover, joined the Gonzales majority, with its conclusion that the government has “wide discretion” to restrict abortion in areas “where there is medical and scientific uncertainty.”

To be sure, the primary plaintiff in the American College case is the American College of Obstetricians and Gynecologists, an organization with an unusual amount of credibility to opine on whether medical uncertainty exists in a particular case. But the College also believed that doctors should be allowed to perform intact dilation and extraction prior to Gonzales, and the Court did not defer to the College’s judgment in that case.

There is good reason to suspect, in other words, that Roberts is likely to resolve a disagreement between the FDA and the College regarding how to safely dispense mifepristone in favor of the government agency.

That said, the fact that the FDA is likely to prevail in American College does not mean that Roberts will go so far as to declare that medication abortions can effectively be banned so long as surgical abortions are available. For one thing, when the Court stays a lower court decision, it often does so in a brief order that does not explain the majority’s reasoning. So even if Roberts agrees with the Trump administration’s arguments, he may not write those arguments into a binding opinion.

If the Court does produce a majority opinion, moreover, there’s no guarantee that Roberts will embrace the broad new restriction on abortion rights proposed by the Trump administration. He could dispose of this case in a relatively narrow opinion holding that courts should defer to public health officials during the pandemic, much like the Supreme Court did in South Bay.

But the fact remains that the Court has five justices who are broadly skeptical of abortion rights. So any time an abortion case reaches the Supreme Court, the Court’s Republican majority could potentially use that case to cut back on the right to terminate a pregnancy — or even to eliminate the right altogether.

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