On Tuesday evening, the Supreme Court released its first abortion decision since Senate Republicans confirmed Amy Coney Barrett as Ruth Bader Ginsburg’s successor. The court’s unexplained, unsigned order allows the government to restrict access to the abortion pill. It also provides a strong signal that the new court is willing to indulge restrictions on abortion, even though it did not bother to explain why. Some may be inclined to write off the court’s decision since the incoming Biden administration could change the specific regulation at issue in the case, which required women to pick up mifepristone in person from a medical facility. But the decision serves as a standing invitation to states to impose yet more draconian restrictions on abortion.
Food and Drug Administration v. American College of Obstetricians and Gynecologists involves an FDA rule restricting patients’ access to mifepristone, one of the drugs used for medication abortions. The rule requires patients to pick up mifepristone in person at medical facilities and sign disclosure forms when they do so. Even under normal circumstances, the rule imposes more onerous requirements on medication abortions than on many other FDA-approved drugs that do not have to be picked up in person at a medical facility. But in the midst of the pandemic, the rule became particularly burdensome. Women seeking abortions faced the choice between risking exposure to the coronavirus or not having a medication abortion at all. Indeed, reflecting the public health risk from the coronavirus, the FDA and Department of Health and Human Services waived in-person requirements for other drugs, including several controlled substances. But the Trump administration elected to continue requiring in-person visits for medication abortions.
A district court enjoined the rule in July after ACOG and other groups argued that it unconstitutionally limited women’s ability to obtain abortions. The court cited volumes of evidence about the safety of medication abortions and the dangers of the pandemic. (For example, a National Academies of Sciences, Engineering, and Medicine report found that the risk associated with taking mifepristone is similar to that of aspirin or ibuprofen.)
The government then asked the Supreme Court to stay the district court’s injunction, which would allow the government to enforce the in-person requirement. The court waited more than a month before releasing a curious opinion in October, as the Senate began its hearings for the Barrett’s nomination. The court punted on the government’s request, directing the parties to first ask the district court to consider modifying or dissolving the injunction. Justices Samuel Alito and Clarence Thomas indicated that they would have granted the stay at that time.
After the district court denied the government’s request to dissolve the injunction, the administration returned to the Supreme Court on Dec. 15. On Jan. 12, the court finally stayed the district court’s injunction, thus allowing the federal government to enforce the in-person requirement for mifepristone. The reasoning behind the stay is largely a mystery: Only Chief Justice John Roberts offered a short paragraph explaining his decision. Roberts insisted that the issue in the case was not whether the requirements for dispensing mifepristone impose an undue burden. Instead, he insisted, the case concerned the deference that courts owed to politically accountable entities on how to respond to the coronavirus public health crisis.
But no other justice joined the chief justice’s opinion. And, given that the new conservative majority has invalidated other COVID-19 restrictions or sent them back to lower courts, it is unlikely the other conservative justices agreed with the chief about deference to elected or appointed officials. (Justice Sonia Sotomayor dissented, joined by Justice Elena Kagan, and Justice Stephen Breyer indicated he would have denied the application.)
The court’s conservatives may have instead arrived at their own independent conclusion that the in-person requirement is constitutional, which would signal that the court has significantly watered down of the legal test governing abortion restrictions behind the scenes. If requiring women to go to medical facilities during a pandemic in order to obtain a drug that has comparable risks to aspirin does not constitute an undue burden, then many other laws that restrict abortion would be constitutional too.
There’s reason to think that may be what happened: As Sotomayor explained in her dissent, no FDA or HHS official has ever submitted a declaration explaining why the in-person requirement for mifepristone poses less danger to public health than the in-person requirements that have been waived in light of the pandemic. There is, she explained, “no reasoned decision” by any health official anywhere that might warrant deference. The other conservatives might simply have viewed the case through a new understanding about when abortion restrictions are constitutional—an understanding that allows far greater restrictions on abortion.
Moreover, the conservative justices, including the chief justice, have criticized the idea that courts owe federal agencies any deference in light of agencies’ relative expertise. Two years ago, Roberts indicated he would overrule the doctrines that allow Congress to provide administrative agencies with the discretion to establish rules and regulations in light of their expertise. Abortion restrictions, apparently, are different.
But even beyond the implications of altering the legal test for abortion restrictions, the decision may also provide a warning about what the new court will do specifically on stays in abortion cases. Stays—decisions about whether to allow a law or regulation to be enforced while litigation is ongoing—can determine whether clinics stay open or close. Perhaps the court will eventually toss a burdensome rule or restriction that has forced a clinic to close. But when clinics close, there is no guarantee that they reopen. Take the court’s case on Texas abortion restrictions, Whole Woman’s Health v. Hellerstedt. Courts allowed Texas’ restrictions to go into effect for a short period of time. While the court ultimately invalidated the restrictions, some of the clinics that closed never reopened. If the new conservative supermajority continues to allow abortion restrictions to remain in effect during litigation, that could spell doom for many more abortion providers, even if they ultimately prevail. And countless women may find they have nowhere to get the health care they need when they need it. So altering the court’s stay practice could lead to a world where abortion restrictions win by default.
But because the court’s decision is unreasoned (SCOTUS usually does not explain its decisions on stay applications), we are left to wonder how and why it may have changed the law governing abortion restrictions.
The incoming Biden administration could mitigate the effects of this specific case by rescinding the in-person requirements for mifepristone. That would ensure women are not prevented from obtaining medication abortions during the pandemic.
But it would not change the direction of the Supreme Court, which signaled, by finally acting on and granting the stay, that it is now ready and willing to uphold severe restrictions on abortion.