While we were busy following the latest developments in Trump’s impeachment and the aftermath of the Capitol riots, the Supreme Court of the US has reinstated a contested federal requirement that women seeking abortion through medication pick up a pill in person at a hospital or clinic during the COVID-19 pandemic instead of receiving one through mail-order pharmacies. The decision, issued earlier this week, has been the Court’s first abortion-related ruling since Justice Amy Coney Barrett’s nomination in October, and has rightfully alarmed women’s rights activists.
At the core of the legal battle is a requirement issued by the Food and Drug Administration (FDA) which mandates that women who seek to terminate their pregnancy through medication pick up the first drug of the two—mifepristone—in person at a clinic or hospital, even if they had already consulted a doctor remotely. The FDA’s restriction does not require in-person pick-ups for the second pill, misoprostol, which is taken one to two days later.
Medication-induced abortion, which can be administered during the first 10 weeks of the pregnancy, currently account for over 50 per cent of abortions within this time frame in the US.
The FDA requirement is part of a flurry of attempted abortion restrictions throughout the country that crescendoed during Trump’s presidency. With an anti-abortion ally in the White House, lawmakers and ‘pro-life’ advocates felt emboldened to ram through countless bills and measures that sought to deny women agency over their bodies.
A coalition composed of various groups, doctors, and women’s advocates had filed a lawsuit last year in an attempt to strike down the FDA’s in-person pick up requirement. The lawsuit was filed by the American Civil Liberties Union (ACLU), and included among its plaintiffs the American College of Obstetricians and Gynecologists (ACOG), whose members account for close to 90 per cent of all obstetricians and gynaecologists in the US.
In their lawsuit, the petitioners highlighted the grave health risk that unwarranted in-person visits to hospitals and medical clinics during a pandemic that has thus far infected over 22.5 million Americans would pose to pregnant women seeking abortion, the medical staff and their communities.
In July 2020, a Federal District Court judge in Maryland, Theodore Chuang, suspended the FDA’s requirement, finding the petitioner’s arguments regarding unnecessary health hazards during COVID-19 to be reasonable, and adding that the government’s insistence on having pregnant women (many of whom are poor) travel, often long distances, to medical centres during a deadly pandemic could infringe on their constitutional right to abortion.
Judge Chuang has also pointed out in his decision that during COVID-19 the federal government has issued exceptions for in-person pick-ups for other drugs, including potent ones such as opioids.
After Chuang’s ruling had been unanimously upheld by a 3-judge panel at a Virginia appeals court, the Trump administration hurried to take up the matter with the Supreme Court. Following a back and forth between the justices and Chuang, the Supreme Court finally deliberated on the matter and, earlier this week, decided to reinstate the FDA’s requirement, with the Court’s three liberal justices dissenting.
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Commenting on the Court’s order, Chief Justice John Roberts Jr. stated that the decision to revive the requirement is a limited one, and will have to be further assessed by experts. Justice Roberts further said that the rationale behind the ruling was not “a woman’s right to an abortion as a general matter,” but rather Chuang’s interference with the federal government’s methods of handling the COVID-19 crisis. “My view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health’,” the chief justice stated, citing a previous ruling of the court.
In a scathing dissent, Justice Sonia Sotomayor wrote that, “This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks.” She added that the FDA’s mandating of in-person pick up for abortion pills during the pandemic while issuing exception for other drugs “not only treats abortion exceptionally,” but also “imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”
Julia Kaye, a lawyer for ACLU, said in a statement that “The court’s ruling rejects science, compassion and decades of legal precedent in service of the Trump administration’s anti-abortion agenda,” adding that “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.”
This week’s decision has confirmed the nightmare of all who hold women’s rights dear: Justice Barrett’s addition to the bench marks the onset of a dark era of the court. With a conservative-leaning majority, the Supreme Court can be expected to continue to deliver rulings that may not overtly negate women’s right to choose, but rely on cynical technicalities and manipulative distortions of the law in order to veil the sinister, underlying goal of restricting abortion access.
The landmark Roe v. Wade ruling granting women in the US a universal right to terminate pregnancies is under attack. Right now, across the country, hundreds of bills aiming to heavily restrict or altogether ban abortion access are making their way through courts that have been packed with judges and justices that object women’s right to choose and look to stiffen an agenda that seeks to deprive women of sexual and personal independence.
And, as is the case with most iterations of state-sanctioned oppression, the crackdown on reproductive rights is disproportionately affecting women of colour and low-income background, making it not only a gender issue but a class and race one as well.
The incoming Biden administration will have to utilise the momentum gained by controlling both chambers of Congress in order to roll back the Trump administration’s abortion restrictions and place powerful and resilient protections for reproductive rights in order to ward off any future attempts to curtail them.
On Saturday 26 September 2020, President Trump officially announced that he would be nominating Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court. Trump presented her as a champion of conservative judicial principles and ignited a partisan and ideological battle to confirm her before the approaching election. Who exactly is Judge Barrett and how could the deeply conservative jurist shift the balance of the court firmly to the right?
“She is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution,” Trump said when making his third Supreme Court nomination in his nearly four years in office.
Barrett is a federal appellate judge and Notre Dame law professor as well as a former law clerk to the late right-wing beacon Justice Antonin Scalia, who died in 2016. At stake in her nomination is the future of public safety, gun rights and religious liberty.
Judge Barrett directly aligned herself with Justice Scalia, “His judicial philosophy is mine, too—a judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
She had been the leading choice throughout last week since Justice Ruth Bader Ginsburg died. One source told CNN that Trump was familiar with Barrett already and had met with her since she was a top contender the last time there was a Supreme Court vacancy when the President chose Justice Brett Kavanaugh instead.
As a conservative with a compelling personal story who has long been atop President Donald Trump’s Supreme Court short list, Barrett could roll back abortion rights and invalidate the Affordable Care Act. Democratic Senator Dianne Feinstein has suggested Barrett’s religious views would influence her rulings, which had previously made her a hero to religious conservatives who denounced what they called unfair attacks on her faith.
In an early 2017 law review essay, when reviewing a book related to the Supreme Court ruling on the Affordable Care Act, Barrett criticised Chief Justice John Roberts’ rationale that saved the law in 2012. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power,” she wrote.
In 2018, when the full 7th Circuit declined to reconsider a dispute over an Indiana abortion regulation requiring that the post-abortion fetal remains be cremated or buried, Barrett dissented with fellow conservatives. They focused instead on a more contentious provision, which made it unlawful for physicians to perform an abortion because of the race, sex or disability of the fetus.
In 2019, Barrett dissented alone when a 7th Circuit panel majority rejected a Second Amendment challenge from a man found guilty of felony mail fraud and prohibited from possessing a firearm under federal and Wisconsin law.
“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding legislatures did not strip felons of the right to bear arms simply because of their status as felons,” she wrote at the time. Barrett concluded, “Holding that the ban is constitutional does not put the government through its paces, but instead treats the Second Amendment as a second-class right.”
In June 2020, she dissented as a 7th Circuit panel didn’t alter a US district court decision, which temporarily blocked a Trump policy. This policy aimed to disadvantage green card applicants who apply for any public assistance. In dispute were federal immigration regulations regarding when an applicant would be deemed a “public charge” and ineligible for permanent status in the US.
In her dissent, Barrett wrote that the Trump administration’s interpretation of the relevant “public charge” law was not “unreasonable.” The 7th Circuit majority countered that her construction failed to take account of the immigrants who would “bear the brunt of the new rule.”
Should Barrett be confirmed before Election Day or shortly thereafter, one of her earliest cases would be on the latest Obamacare challenge. The court is scheduled to hear that case on 10 November 2020.
On Saturday, Democrats wasted no time announcing their opposition to Judge Barrett, taking aim at both her judicial philosophy and the rushed process to force her confirmation. “Justice Ginsburg must be turning over in her grave up in heaven, to see that the person they chose seems to be intent on undoing all the things that Ginsburg did,” said Senator Chuck Schumer of New York, the Democratic leader.
In a separate statement, he said that making the nomination so close to the election was a “reprehensible power grab” that was “a cynical attack on the legitimacy of the court.” For Trump, replacing Justice Ruth Bader Ginsburg with Judge Barrett gives him the chance to both thrill his conservative base and outrage his liberal opponents.
At a time when the country is already deeply divided, Barrett is bound to touch upon divisive issues like abortion, religion, guns and health care. The debate stemming from this news has allowed Trump to change the focus from the coronavirus pandemic and the way he handled it in the US. On her end, Judge Barrett has compiled an almost uniformly conservative voting record.
If she is confirmed, she would move the court to the right, making compromise less likely and putting the right to abortion at risk. The Senate Judiciary Committee will begin hearings on 12 October when Judge Barrett will have to answer an elaborate questionnaire, which the Senate will then examine.
The 22 members of the Judiciary Committee, which is led by Trump ally Senator Lindsey Graham, will hold confirmation hearings for four consecutive days. That is considerably faster than recent Supreme Court nominations, cutting the time to prepare for the hearings by about two-thirds in order for the new Supreme Court justice to be announced before the presidential elections.
After the hearings, the committee will vote on whether to recommend the nomination to the full Senate, a meeting Republicans have scheduled for 22 October. If that schedule holds, the full Senate will vote on whether to confirm Judge Barrett in the final week of October, just a week before election day.