August 27, 2020

Justice Department Asks Supreme Court to Reinstate FDA Abortion Pill Safeguards

photo credit: Ken Chan / Flickr
The Department of Justice has petitioned the Supreme Court of the United States to reinstate FDA abortion pill restrictions that were placed under a preliminary injunction by a district court judge last month.

On July 13, U.S. District Judge Theodore Chuang placed a preliminary injunction against the FDA's Risk Evaluation and Mitigation Strategy (REMS) being applied to mifepristone during the COVID-19 pandemic. The REMS safeguards normally prevent women from being able to obtain abortion pills unless they visit a medical professional in-person. Chuang, however, ruled that the risk involved with seeing a medical professional during the pandemic puts an "undue burden" on women seeking an abortion.

The Justice Department wrote in its petition to the Supreme Court,

“Given that the surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first ten weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat riskier.”

The petition further argues that the district court did not have the power to make such a sweeping injunction:

“This Court has made clear that judges are not to second-guess how officials address public-health concerns in areas of uncertainty, yet the district court dismissed the FDA’s expert judgment in favor of its own view that the safety requirements are medically unnecessary. And setting the merits aside, the scope of the injunction extends well beyond the district court’s remedial authority under Article III and basic equitable principles.”

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