Supreme Court reinstates requirement for women seeking abortion drug to get it in person
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The U.S. Supreme Court on Tuesday reinstated a Trump administration requirement that women seeking an abortion drug must pick it up in person at a hospital, clinic or medical office.
Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan said they would have rejected the federal government’s stay request, although Breyer did not join Sotomayor’s written dissent.
The Supreme Court had rejected an emergency application to reinstate the in-person requirement in October, before Justice Amy Coney Barrett joined the court. At that time, the court said it was holding the government application in abeyance to allow the federal judge to reconsider.
U.S. District Judge Theodore Chuang of the District of Maryland kept a nationwide injunction in place when he reconsidered.
In its Jan. 12 order, the Supreme Court said the government could enforce the in-person requirement pending an appeal to a federal appeals court and disposition of a cert petition, if one is filed. The Supreme Court did not give reasons for its decision.
But Chief Justice John G. Roberts Jr. explained his views in a concurrence.
The question is not whether the government requirement imposes an undue burden on abortion, he said. Rather, the question is whether the federal judge properly ordered the requirement lifted because of his own evaluation of the COVID-19 impact.
“My view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health,’ ” Roberts said.
Sotomayor’s dissent, joined by Kagan, said the abortion drug mifepristone is the only medication approved by the Food and Drug Administration that must be picked up in person. The government had waived requirements for in-person pickups of other drugs after the COVID-19 pandemic began.
Sotomayor said the mifepristone requirement is “an unnecessary, unjustifiable, irrational and undue burden on women seeking an abortion during the current pandemic.”
The case is FDA v. American College of Obstetricians and Gynecologists.