The Corner

Law & the Courts

Supreme Court Allows FDA to Reinstate Safety Requirement for Chemical Abortions

Supreme Court nominee Amy Coney Barrett attends her confirmation hearing before the Senate Judiciary Committee on Capitol Hill, October 12, 2020. (Alex Edelman/Pool via Reuters)

The Supreme Court has decided that the Food & Drug Administration may reinstate its safety policy for chemical-abortion drugs. Since the drug was first approved in 2000, the FDA has required that women obtain it in person rather than via telemedicine, a provision meant to ensure that women are in touch with a health-care professional and able to obtain follow-up treatment in the event of complications.

Last summer, a federal judge ruled that the FDA’s safety standards were an unconstitutional “substantial obstacle” to women’s supposed right to an abortion during the COVID-19 pandemic.

“By causing certain patients to decide between forgoing or substantially delaying abortion care, or risking exposure to COVID-19 for themselves, their children, and family members, the In-Person Requirements present a serious burden to many abortion patients,” U.S. district judge Theodore Chuang wrote at the time.

This decision from the Supreme Court will reverse Chuang’s ruling, permitting the FDA to put its safety policy back in place, which will halt the distribution of chemical abortions via telemedicine appointments. Last fall, after the death of Supreme Court justice Ruth Bader Ginsburg but before Justice Amy Coney Barrett’s confirmation, the eight-justice Court declined to consider an appeal from the Trump administration, suggesting instead that the lower court revisit the question.

All three of the Court’s activist judges dissented from this latest decision affirming the FDA policy. In her dissent, Justice Sonia Sotomayor reiterated the logic of the Court’s 1992 decision in Planned Parenthood v. Casey, calling the FDA’s safety standard “an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose.” Sotomayor argued that the government should undo the policy entirely and thereby “exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times.”

In spite of Sotomayor’s demeaning, anti-feminist assertion that women cannot control their reproductive lives unless they are permitted to obtain medical abortions over the Internet, this ruling is in fact a victory for women. It is revealing that those who purport to represent “women’s health” so adamantly oppose even the most minimal safety regulations on chemical abortion, which carries with it the non-negligible risk of serious complications and side effects.


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