A worrisome pattern of a conservative supermajority
In her dissent, Justice Sonia Sotomayor criticized the government’s “statistically insignificant, cherry-picked data” and argued that the government did not provide any explanation from an FDA or HHS official explaining why mifepristone’s in-person requirement is more important than the in-person requirements of other drugs that have been waived during the pandemic.2 Therefore, she explained, there is “no reasoned decision” by any health official anywhere on which they can base the decision to grant the stay.
This ruling was the Supreme Court’s first major decision on reproductive health since the confirmation of Justice Amy Coney Barrett and may be an insight into future decisions of the new conservative supermajority on abortion and reproductive health issues. Particularly worrisome is what this decision could mean for stays in abortion cases that dictate whether or not the regulation is enforced during an active case. Even if cases are ruled in favor of patients and abortion providers, if the courts continue to allow enforcement of abortion restrictions during litigation, this could result in permanent closure of abortion clinics and prevent many individuals from accessing safe and legal abortion.
Looking toward the future
In the setting of almost 29 million cases of COVID-19 and more than 526,000 deaths, this stay order requires women seeking a medication abortion to make an appointment at a clinic, risking possible exposure to COVID-19, in order to access mifepristone.3,4 The Biden administration can and should remove the FDA requirement for in-person delivery of mifepristone, which would mitigate the effects of the stay order and allow women to obtain medication abortions during the pandemic.
Take action
- Contact your local ACLU (find them here) or lawyer in your area for assistance navigating the legal landscape to prescribe mifepristone after this stay order
- Minimize a patient’s wait time for mifepristone administration by blocking time in your weekly schedule for patients seeking abortion care
- Work with other providers and health care professionals in your area to submit petitions to the FDA