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Supreme Court Punts On Abortion Pills, Allowing Them To Be Mailed — For Now

The U.S. Supreme Court has refused, for now, to reimpose FDA regulations that require women seeking medication abortion to pick up the prescribed pills in person at a clinic instead of by mail.

The court's decision came Thursday night on a 6-to-2 vote that rejected an emergency appeal from the Trump administration.

The challenge to the Food and Drug Administration regulation was brought by the American College of Obstetricians and Gynecologists after the the agency relaxed similar regulations for other drugs — including opioids — in order to limit patients' exposure to COVID-19 during the pandemic. The FDA refused to relax the same rule for those with prescriptions for abortions with pills in the first 10 weeks of pregnancy.

Federal Judge Theodore Chuang in Maryland ruled in favor of ACOG, declaring that requiring such in-person pickups of pills during a pandemic posed "a substantial obstacle to women seeking an abortion." The Supreme Court has long ruled that such substantial obstacles unconstitutionally interfere with a woman's right to terminate a pregnancy.

On Thursday night, the Supreme Court turned down the Trump administration's attempt to block the lower court order. But the decision was more of a punt than a long-lasting decree.

The high court said it would hold the Trump administration's request "in abeyance" to permit the district court judge to promptly consider other efforts by the administration to "dissolve, modify, or stay" its previous order if "relevant circumstances have changed." And the justices said that their decision did not indicate their views on the merits of the case should it come to them again.

The language of the one-paragraph order seemed to suggest that the court was simply unwilling to make any decision in an abortion case three weeks after Justice Ruth Bader Ginsburg died, and just days before the U.S. Senate is scheduled to take up the nomination of Judge Amy Coney Barrett as Ginsburg's replacement.

"It is a relief that for the next few weeks, the Trump administration cannot force abortion patients to needlessly risk contracting a life-threatening disease as a condition of obtaining care," said Julia Kaye, lead counsel for ACOG in the case. But, she added, "When President Trump is trying to rush through a third Supreme Court justice with the express goal of overturning Roe v. Wade, the court's delayed ruling in this case gives little comfort that the right to abortion is secure."

But Marjorie Dannenfelser, president of the Susan B. Anthony List, which opposes abortion rights, said her group was "disappointed by the lack of a ruling."

"We thank the Trump administration for fighting for vitally important health and safety protections and are confident we will ultimately prevail," she said.

Dissenting from Thursday night's decision were Justices Samuel Alito and Clarence Thomas. Writing for the two, Alito said that "for all practical purposes there is little difference between what the court has done and an express denial" of the Trump administration's emergency motion to block the lower court order.

Alito went on to blast his colleagues for other actions it has taken during the pandemic in upholding bans on large church gatherings, decisions that he characterized as "unimaginable restraints" on the "free exercise of religion."

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.