The Court’s new majority has its first chance to take a shot at Roe v. Wade.
Last October, the Supreme Court handed down a fairly surprising order in an abortion case.
FDA v. American College of Obstetricians and Gynecologists concerns whether patients should have an easier time obtaining a pill used in medication abortions while the Covid-19 pandemic is still raging, but the Trump administration saw in the case an opportunity to drastically roll back abortion rights. One of the administration’s arguments could force abortion patients to have unnecessary surgeries instead of receiving a far less invasive medication abortion, and it could potentially deny abortions to many people altogether.
But the Court’s October order addressed none of the important questions presented by the American College case. Instead, the Court sent the case back down to a lower court to reconsider an earlier order suspending one of the Food and Drug Administration’s restrictions on medication abortions. The practical effect of this October order was that it delayed any need for the Supreme Court to decide the case until after the election.
But the election is now over, and the case is back before the justices. Just as significantly, the Court itself is quite different than it was in early October. Amy Coney Barrett is now a justice, and Justice Barrett has the most explicitly anti-abortion record of anyone confirmed to the Supreme Court since Justice Samuel Alito joined the Court in 2006.
So if the Court’s new majority were looking for a vehicle to roll back abortion rights, they now have one. And the Trump administration wants them to make some very significant cuts to those rights.
What’s happened in the American College case so far
The specific issue in American College involves mifepristone, part of a two-drug regime used to induce abortions. Mifepristone causes pregnancy tissue and the lining of the uterus to break down and separate from the uterus itself. A day or two after taking mifepristone, the patient takes a second drug, misoprostol, which causes the uterus to contract and expel its contents.
Although patients may take mifepristone at home, the Food and Drug Administration only permits this drug to be dispensed at hospitals, clinics, or other medical offices — not at a retail or mail-order pharmacy.
Under ordinary circumstances, this requirement that patients must pick up their mifepristone prescription from a medical office is a fairly minor burden on abortion rights — and it’s worth noting that the requirement was put in place in 2000, under Democratic President Bill Clinton, and repeatedly reaffirmed during the Obama administration.
But in the midst of a pandemic, requiring patients to pick up their mifepristone in person is potentially a very significant restriction on abortion rights. Many abortion clinics have either closed or are operating at reduced capacity during the pandemic, and patients may be reluctant to risk coronavirus infection in order to pick up the drug. And all of this has happened while many health providers have moved toward telemedicine to protect themselves and their patients from Covid-19, and mail-order pharmacies allow patients to obtain many prescriptions without risking exposure to the coronavirus.
Given the unusual burdens created by the pandemic, a lower federal court held that the requirement that mifepristone must be dispensed in person must be suspended until 30 days after the public health emergency ends. The Trump administration tried unsuccessfully to get the justices to lift that order in the fall. And, now that the lower court has reconsidered its earlier decision and reaffirmed it, Trump’s Justice Department is back before the Supreme Court seeking the same relief.
The Trump administration’s arguments would force many abortion patients to have unnecessary surgeries
There are several possible reasons the Supreme Court might decide to block the lower court’s order and reinstate the requirement that mifepristone must be dispensed in person. But the Trump administration advances at least one argument that would do serious damage to the constitutional right to terminate a pregnancy.
Medication abortions are an alternative to a much more invasive surgical procedure, where a patient’s cervix is dilated and the fetus is removed via suction through the vagina. Among other things, surgical abortions carry considerably more risk during a pandemic. They require patients to spend a significant amount of time in a clinic where they could potentially be exposed to the virus, rather than simply making a brief visit to pick up pills.
Nevertheless, the Trump administration argues that it’s fine for the FDA to impose restrictions — even potentially very significant restrictions — on medication abortions so long as surgical abortions are available. The in-person dispensing requirement, the Trump administration argues in one of its briefs, has “no effect on the availability of surgical abortions, a method that this Court has treated as safe for women.”
“Requiring in-person interaction for a medication abortion is not an undue burden” on the right to terminate a pregnancy, the Trump administration claims, “simply because [patients] would prefer another alternative.”
There is some support for this argument in case law. The low-water mark for abortion rights, at least after Roe v. Wade (1973) established that the right to an abortion is constitutionally protected, was the Court’s 2007 decision in Gonzales v. Carhart.
Before Gonzales, the Court applied a strong presumption against abortion restrictions that could endanger patients’ health. As the Court held in Stenberg v. Carhart (2000), “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” a ban on that procedure must “include a health exception when the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’”
Nevertheless, Gonzales upheld a federal ban on a method of abortion known as “intact dilation and extraction,” and it did so despite the fact that the federal ban did not include an exception “for the preservation of the life or health of the mother.” Instead, Gonzales held that lawmakers have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
Significantly, Gonzales pointed to the fact that the ban on intact dilation and extraction did not prohibit another “commonly used and generally accepted method” of abortion that could be used as an alternative. Thus, the Court reasoned, a ban on this one particular method of abortion “does not construct a substantial obstacle to the abortion right” because patients could still obtain a different form of abortion.
The Trump administration claims that a similar rule should apply in American College. Just as a ban on intact dilation and extraction is acceptable so long as abortion patients can still have a different procedure, so too should a restriction on medication abortions be upheld so long as surgical abortions are available.
Two problems with the Trump administration’s approach
Even if you accept the Trump administration’s reading of Gonzales, it’s far from clear that surgical abortions actually are available to patients who are unable to obtain medication abortions. Thanks to the pandemic, many clinics are operating at reduced capacity. One physician, for example, told the lower court that her clinics “operate at only 20 percent capacity, with the reproductive health clinics open only for half days, twice a week.”
Such a stressed clinic might have the capacity to distribute mifepristone, but it’s unlikely that they could accommodate a rush of new surgical patients if medication abortions are not available.
The other problem with the Trump administration’s argument is that the Court backed away somewhat from its decision in Gonzales, after anti-abortion lawmakers tried to use that decision to justify very aggressive attacks on the right to an abortion.
Recall that Gonzales declared that Congress and state legislatures have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” In the wake of Gonzales, many states enacted what abortion rights advocates describe as “targeted restrictions on abortion providers,” or TRAP laws. TRAP laws superficially appear to be health laws intended to make abortions safer, but they impose expensive and unnecessary requirements on abortion clinics that are really intended to shut down those clinics.
Think, for example, of a Texas law that required all abortion clinics to maintain elaborate operating rooms where surgeries can be performed in as sterile an environment as possible. Such facilities are completely unnecessary in abortion clinics because many clinics only provide medication abortions, and even those that do perform surgical abortions, which do not require doctors to make an incision, do not need a sterile environment.
Often, states would justify such laws in court by introducing testimony from physicians who oppose abortion. These physicians would testify that a particular TRAP law actually would protect patient health — often disagreeing with testimony from other physicians who believed that the laws had little or no health benefit. The state could then point to this disagreement among physicians as evidence that “medical and scientific uncertainty” exists, and claim that the legislature was free to do what it wants under Gonzales.
In any event, the Supreme Court rejected this attempt to leverage Gonzales to justify massive incursions on the abortion right in Whole Woman’s Health v. Hellerstedt (2016), which reaffirmed that “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” are unconstitutional.
Whole Woman’s Health, however, was a 5-3 decision. Since it was decided, a vacant seat on the Supreme Court was filled by Justice Neil Gorsuch, and two justices in the Whole Woman’s Health majority left the Court and were replaced by Justices Brett Kavanaugh and Barrett. Gorsuch, Kavanaugh, and Barrett all have anti-abortion records.
The Court’s new majority, in other words, could very well embrace the aggressive reading of Gonzales preferred by the Trump administration and by many states that enacted TRAP laws.
The Court could also decide this case on fairly narrow grounds, if it prefers to do so
It’s worth noting that there is a way that the Court could potentially reinstate the FDA’s restrictions on mifepristone without having to wade into broader questions about just how much protection the Constitution provides to people seeking abortions.
During the pandemic, Chief Justice John Roberts has emphasized that courts should typically defer to public health officials, even when those officials take steps that implicate constitutional rights. As Roberts wrote in South Bay United Pentecostal Church v. Newsom (2020), “the precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” He added that “our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”
A majority of the Supreme Court recently rejected this approach, at least with respect to state health regulations that implicate churches. But an abortion clinic is not a church. And the FDA is a public health agency that claims that the preexisting restrictions on mifepristone are still justified.
The Court, in other words, could simply declare that it will defer to the FDA’s determination about which drugs should be easily available during the pandemic, regardless of whether those drugs are used in abortions or for some other purpose. Such a decision would have few, if any, larger implications for the right to an abortion once the pandemic is over.
But there is no way to know if the Court will hand down a narrow decision or a much broader one. And if the Court does decide to make a significant incursion on abortion rights, its right flank probably has the votes.
Author: Ian Millhiser
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