The US supreme court behind security fencing in Washington, the US, January 12 2021. Picture: REUTERS/ERIN SCOTT
The US supreme court behind security fencing in Washington, the US, January 12 2021. Picture: REUTERS/ERIN SCOTT

Washington — A divided US supreme court reinstated a requirement that women visit a medical facility to obtain abortion-inducing pills, granting a Trump administration request to end the mail deliveries a judge had allowed during the coronavirus pandemic.

The order, which came over three dissents, marks a shift for a court that let mail deliveries continue temporarily in October. That was before justice Amy Coney Barrett joined the court and strengthened its conservative majority.

The court as a whole gave no explanation, but chief justice John Roberts said in a concurring opinion that “courts owe significant deference to the politically accountable entities with the competence, and expertise to assess public health”. His one-paragraph explanation referenced his earlier opinion rejecting a church’s bid to relax capacity restrictions during the pandemic.

Dissenting justice Sonia Sotomayor suggested she hoped the incoming administration of president-elect Joe Biden would lift the in-person requirement. Biden takes office January 20.

“One can only 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 unsettling times,” Sotomayor wrote in an opinion joined by justice Elena Kagan. “For now, I respectfully dissent.”

The court’s third liberal, justice Stephen Breyer, also dissented but did not join Sotomayor’s opinion.

The order marks the clearest sign yet of Barrett’s affect on the polarising issue of abortion. The court separately has been deliberating for months on Mississippi’s bid to reinstate its ban on most abortions after the 15th week of pregnancy. That case could gut the 1973 Roe vs Wade decision, which legalised abortion nationwide.

In blocking the in-person requirement in July, judge Theodore Chuang said some patients were having to choose “between forgoing or substantially delaying abortion care, or risking exposure to Covid-19 for themselves, their children, and family members”. The Maryland-based judge reaffirmed his order on December 9, saying that the “health risk has only gotten worse”.

President Donald Trump’s administration says the in-person rule does not pose a significant obstacle to abortion access, particularly given the availability of surgical procedures. The Food and Drug Administration (FDA) has always required that mifepristone, approved in 2000, be dispensed at a medical office, clinic or hospital.

In 2016 the FDA let women take mifepristone at home, but the agency left intact the requirement that the pills be dispensed in person. Mifepristone is sold as a brand drug by Danco Laboratories and in a generic pill by GenBioPro.

A group, led by the American College of Obstetricians and gynaecologists, sued after the pandemic began, arguing that the in-person requirement should be lifted temporarily. The group said the Trump administration has suspended in-person rules for other drugs during the pandemic, including potentially lethal opioids.

In October, the supreme court deferred acting on the administration’s bid to reinstate the in-person requirement, saying the government should try again with Chuang first. That order bore the hallmarks of a compromise from what was then a short-handed court after the death of justice Ruth Bader Ginsburg.

Bloomberg 

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