The Supreme Court passed a ruling on Thursday evening that rather than resolves a major abortion battle, it delays a delay. He has just postponed it for so long that the judges don’t have to weigh up until after the election.
The case, FDA versus American College of Obstetricians and Gynecologists, includes a dispute over whether it should be easier for abortion patients to get a pill used as part of a two-drug regime to terminate a pregnancy. Mifepristone, the drug at the center of American college, causes pregnancy tissue and the lining of the uterus to break down and separate from the uterus itself. About a day or two after taking mifepristone, the patient takes a second drug, misoprostol, which causes uterine contractions and expels the contents of the uterus.
The Food and Drug Administration (FDA) approved the use of mifepristone for this purpose in 2000. While patents often take the drug at home, the FDA requires them to pick up the drug at a hospital, clinic, or doctor̵
Under normal circumstances, this is a relatively small burden on the ability of abortion patients to obtain an abortion. During a deadly pandemic, that requirement that patients receive mifepristone direct from their healthcare provider is significantly more onerous for a variety of reasons. Patients may be reluctant to travel to a clinic and risk infection, and many abortion providers are either closed or are working at reduced capacity to limit the spread of Covid-19 (or at least as the lower court order has been reached issued).
Accordingly, a lower federal court eased the FDA’s usual restrictions on the supply of mifepristone for up to 30 days after the pandemic-triggered public health emergency ended.
As Samuel Alito emphasizes in a dissenting opinion in Justice American collegeThis is precisely the case where Chief Justice John Roberts – who is usually against abortion rights but also cast a surprise vote last June to block an anti-abortion law in Louisiana – will usually rule in favor of the Trump administration’s motion Reintroduction of FDA restrictions on mifepristone into the process.
In cases of asking how public health officials should respond to the pandemic, Roberts has consistently insisted that courts should postpone these officials’ verdict. in the South Bay United Pentecostal Church v Newsom (2020), for example, Roberts broke with his conservative peers, allowing a California health policy that limits the number of people who could congregate in a place of worship to remain in effect.
“The exact question of when restrictions on certain social activities should be lifted during the pandemic is a dynamic and fact-intensive one that is subject to reasonable disagreement,” wrote Roberts in his South bay Opinion. He added that “our constitution mainly”[t]To protect and protect the safety and health of the people “to the politically accountable officials of the States”. “
Similar logic could easily be applied to that American college Case, and it could be applied to this case without even having to deal with the difficult legal and political issues surrounding the right to abortion. A court ordered health officials at the FDA to change the rules for a specific drug, citing the pandemic as a justification. But Roberts usually demands courts to do this move to such officers in pandemic-related cases.
Yet the court doesn’t solve the case so much as to throw away a hot potato until the election is over. Citing unspecified concerns that “a more complete record would aid the review of this court,” the Supreme Court said American college The order effectively referred the case back to the lower court “so that the district court can immediately examine a government motion to dissolve, amend or suspend the injunction, including on the grounds that the relevant circumstances have changed”.
The Supreme Court also ordered the lower court to “rule within 40 days of receipt of the government submission”.
In other words, a majority in the court asked the lower court to take over. And it gave the district court just enough time to finish if this case hits the judges again (and Supreme Court candidate Amy Coney Barrett is likely to be upheld). Only Judges Clarence Thomas and Alito publicly announced that they had departed from the Court’s order American collegealthough it is possible that some other judiciary tacitly disagreed.
There’s no way to know for sure why the Court took this highly unusual measure, but there is a cynical interpretation: at least some key members don’t want to get caught up in a huge abortion controversy in the middle of a Supreme Court confirmatory presidential election.
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