“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes to stay a district court decision that enjoined during the pandemic an FDA requirement that women must request and obtain in person drugs that induce abortion during the first ten weeks of pregnancy. The Court’s moderate justices strongly dissented from the majority’s unsigned order issued without explanation in January 2021 in FDA v American College of Obstetricians and Gynecologists.
FDA regulations require that when a woman wants to receive mifepristone, an FDA-approved drug that can end pregnancy through the first ten weeks, she must go in person to a medical professional to sign forms and receive it. Because of the serious health risks posed by the pandemic, the American College of Obstetricians and Gynecologists (ACOG) went to federal court in Maryland, asking for an injunction against the in-person requirement because it creates a substantial burden to obtaining the pill in the middle of the pandemic.
Judge Theodore Chuang agreed, and issued a nationwide order that suspended the requirement in July, 2020. In response to an FDA request to stay the order, the Supreme Court in August directed the FDA to go back to the district judge to seek to lift or modify the order based on its claim that “relevant circumstances have changed.” The judge denied the FDA request on December 9,2020, explaining that while the order is not “open-ended” and that there was “positive news” relating to vaccines, the FDA had failed to show a sufficient improvement in conditions to warrant changing his order now, at this “most deadly phase of the pandemic.”
The case went back to the Supreme Court, and all three Trump justices were part of a six-judge majority that granted the FDA’s request to stay Judge Chuang’s order and reinstate the requirement while an appeal of the order was pending. The court’s short order gave no explanation, but a concurring opinion by Chief Justice Roberts suggested that at least he believed that the district judge should not have issued the order based on his “own evaluation” of the pandemic and should instead have deferred to a “politically accountable” entity like FDA with the “background, competence and experience to assess public health.”
The three moderate justices dissented. In a strong dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, acknowledged that although deference is due to “reasoned decisions” of public health authorities, the FDA was giving “unique treatment” to the anti-abortion drug, since it had “waived in-person requirements for several other drugs” during the pandemic. Enforcement of the in-person requirement during the pandemic, she explained, “places an unnecessary and undue burden” on the right to obtain an abortion. The FDA’s claim that women can instead obtain a surgical abortion, Sotomayor went on, was a “callous response” that ignores the fact that such abortions are “far more invasive” and riskier than medication abortions, particularly during the pandemic.
Sotomayor concluded that the in-person mandate “imposes an unnecessary, irrational, and unjustifiable undue burden on women seeking to exercise their right to choose.” She expressed “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 unsettled times.” This will hopefully happen after January 20, despite the votes of the Court’s three Trump justices.