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WASHINGTON January 12, 2021 – In its first ruling on abortion with Justice Amy Coney Barrett on the bench, the Supreme Court today reinstated a federal policy that requires patients seeking a medication used for early abortion care to incur unnecessary COVID-19 risks by traveling to a health center for the sole purpose of picking up a pill and signing a form.

The U.S. Food and Drug Administration (FDA) policy requires patients seeking mifepristone to pick up the pill in person at a hospital, clinic, or medical office, even when the patient has already been evaluated by a clinician using telehealth or at a prior in-person visit and will be receiving no medical services at the time. During the pandemic, this travel exposes patients to needless COVID-19 risks relating to transportation, childcare, and other interpersonal contact. With today’s decision from the Supreme Court, the in-person pill pick-up requirement will go back into effect immediately.

The court’s ruling will be particularly harmful for people of color and people with low incomes, who make up the majority of impacted patients and who are suffering severe complications and dying from COVID-19 at disproportionately high rates. The Biden-Harris administration could quickly resolve this matter by issuing guidance indicating that it will not enforce the mifepristone in-person requirement during the COVID-19 public health emergency, in line with the government’s treatment of other medications during the pandemic.

The following is a statement from Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project:

“The Court’s ruling rejects science, compassion, and decades of legal precedent in service of the Trump administration’s anti-abortion agenda. It is mind-boggling that the Trump administration’s top priority on its way out the door is to needlessly endanger even more people during this dark pandemic winter — and chilling that the Supreme Court allowed it. The Biden-Harris administration must right this wrong on day one and hold firm to its commitment to support both evidence-based regulations and reproductive freedom.”

The Supreme Court’s order, which was issued over a strong dissent, reverses three lower court decisions blocking the mifepristone in-person requirement, including a ruling last month from the U.S. District Court for the District of Maryland rejecting the Trump administration’s recent argument that the in-person requirement should be reinstated because the “risks and burdens” of the pandemic have all been “eliminated or mitigated.” In its Dec. 9 ruling, the district court found that the grave health risks to which the FDA’s policy subjects patients have in fact worsened profoundly since the injunction was first issued in July, with the nation now facing the “most deadly phase of the pandemic” and “uniformly dire conditions” nationwide. The court noted that the policy imposes particularly severe risks on Black and Latinx patients between the ages of 25 and 34, who are more than 700 percent more likely to die from COVID-19 than white people in that age range.

Of the 20,000 drugs the FDA regulates, this safe, effective medication used for abortion care is the only one the FDA requires patients to pick up in person at a health center even though they may take it later at a time and place of their choosing. During the pandemic, the government has suspended other kinds of in-person requirements for far less safe medications, including allowing patients to obtain opioid drugs like fentanyl and OxyContin through telemedicine.

The following are statements from the plaintiffs:

Eva Chalas, M.D., FACOG, FACS, president of American College of Obstetricians and Gynecologists:
“Despite the Administration’s claims, the facts in this case remain clear: mifepristone is a safe, effective medication for termination of pregnancy, and its use should not expose patients or clinicians to added risk of COVID-19 infection. We are gravely disappointed that our members and their patients will now be faced with an unnecessary increase in risk of exposure to COVID-19 as the virus rages across the country. Access to reproductive health care should not come with a caveat.”

Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective:
“With today’s ruling, the Supreme Court told people of color that unnecessary risk of exposure to a virus that is disproportionately killing our communities is a fair price to pay for access to abortion. Black, Brown and Indigenous folks should not have to endure yet another form of state violence while we are fighting for our lives in this pandemic. It’s up to the Biden-Harris administration to not only undo this damage they are inheriting, but also take bold affirmative action to advance reproductive justice.”

David Chelmow, M.D., president of the Council of University Chairs of Obstetrics and Gynecology:
“We are deeply disappointed that the Supreme Court has ignored the medical expert consensus and put patients at needless risk. As Chairs of Ob-Gyn departments at medical schools and hospitals across the country, we have seen firsthand the harm attacks on reproductive health care cause our patients. It is time for the new administration to remove these unnecessary and harmful restrictions, during the pandemic and beyond.”

Jason Matuszak, M.D., FAAFP, President of New York State Academy of Family Physicians:
“It is disgraceful and frankly frightening that instead of listening to expert medical and scientific consensus about the safety of medication abortion and the risks imposed by these unwarranted restrictions, the Supreme Court chose to listen to politicians with an anti-science, anti-abortion agenda. It’s past time for the FDA to eliminate these baseless restrictions—not only during the pandemic, but for good.”

The plaintiffs in the case are the American College of Obstetricians and Gynecologists, the Council of University Chairs of Obstetrics and Gynecology, New York State Academy of Family Physicians, SisterSong Women of Color Reproductive Justice Collective, and an individual family medicine physician. The litigation is supported by the American Medical Association.  

More information about this case can be found here: https://www.aclu.org/cases/american-college-obstetricians-and-gynecologists-v-us-food-and-drug-administration

The order is online here: https://www.aclu.org/legal-document/supreme-court-order-granting-stay