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The Supreme Court just passed the first anti-abortion decision of the Amy Coney Barrett era

By Yair Oded

Jan 15, 2021

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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.

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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.

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.