If there is one thing 2020 has taught us so far, it is that we should expect the unexpected. And now 2020 may bring another surprise, with a second U.S. Supreme Court ruling on a highly controversial issue: abortion.
In FDA v. ACOG, several pro-abortion organizations filed a federal lawsuit in May challenging the Food and Drug Administration’s patient protections requiring abortion providers to meet in person with their patients before prescribing pills to induce a chemical abortion. Under both Republican and Democrat administrations, the FDA has long maintained these sensible protections.
Yet, without any new evidence of safety or medical advancements, a federal district court in Maryland issued a nationwide preliminary injunction asserting that the protections now pose an “undue burden” on abortion access because of COVID-19. The legal reasoning here doesn’t add up, and now that the U.S. Court of Appeals for the 4th Circuit has affirmed this wayward ruling, the Supreme Court is dutybound to step in and nullify it.
The pro-abortion parties’ first major argument is that the FDA violates the rights of abortion pill providers under the Equal Protection Clause because those providers were not among the medical professionals granted telemedicine exemptions from patient protection regulations due to COVID-19. This argument overlooks the critical fact that not all medical procedures are equal.
Although telemedicine is a safe alternative for some procedures, abortion is not one of them. In-person appointments are needed for the abortion provider to properly calculate if the abortion pill — prescribed only during the first 10 weeks of pregnancy — is appropriate for the woman, depending on the development of her child. The doctor also must determine if the woman has an ectopic pregnancy, where the embryo is implanted in the fallopian tube. Inaccuracy on these facts can cause trips to the emergency room — or worse. And these dangers can only be potentially avoided by an ultrasound during an in-person examination.
In fact, chemical abortions are particularly unsafe even with the FDA’s protections. According to FDA reports, chemical abortions have caused 24 maternal deaths, hundreds of severe infections and hospitalizations, and more than 4,000 other adverse medical reactions — in part because abortion drugs fail 5 to 7 percent of the time. But now the abortion industry wants to make matters worse by stripping away commonsense patient protections.
The district court disregarded all of these serious risks, partly because abortionists testified that women did not actually need the safety provided by in-person examinations. This is senseless. In no other field of medicine would we allow profit-driven parties to bulldoze the patient protections the FDA has established. Abortionists do not deserve a special exception.
The pro-abortion parties’ second major claim is that COVID-19 has made various ordinary activities an “undue burden,” as defined in Planned Parenthood v. Casey. But the examples provided contradict Casey itself.
One abortionist said that “even paying for transportation to the clinic presents a hardship” for many patients because of the economic recession. But a “hardship” does not a constitutional violation make. In Casey, the Supreme Court upheld a 24-hour waiting period that resulted in, for example, some women losing a day’s pay to visit the abortion clinic two separate times. Though there are incidental costs to following commonsense regulations when undergoing this life-altering procedure, those do not amount to a “substantial obstacle” or an “undue burden.”
Simply put, constitutional scrutiny does not slide with the employment rate or the stock market for any issue, including abortion. The right to abortion announced in Roe v. Wade has never been a right to cost-free abortion on demand.
“Undue burden” claims related to social distancing miss the mark, too. Abortion facilities, like many places today, may not be filling to 100% capacity, but still may need to ensure social distancing in their waiting rooms. This is a manageable task. To avoid unnecessary crowding, abortion patients need not stay at home behind a computer; rather, they can easily wait outside in their cars and receive a text or call to come in for their appointment instead—just as millions of other medical providers and patients around the U.S. are doing.
To that end, the hypocrisy of the abortion industry is glaring. For months, they have minimized the need for social distancing and demanded that abortion clinics must stay open for in-person visits and elective abortions must continue while all other elective medical procedures were temporarily suspended due to COVID-19. It seems they will advocate for whatever side of the argument leads to the highest number of abortions.
Besides these basic legal and logical errors, the district court created another constitutional problem by completely blocking the FDA patient protections with a nationwide injunction. With widely varied COVID-19 rates across country, this case presents a perfect example of why the Supreme Court must police such actions. Courts should not grant extraordinary relief to plaintiffs who are not before them, and COVID-related regulations in small-town rural America should not be dictated by the alleged circumstances in metropolitan goliaths.
In the recent June Medical decision, Chief Justice John Roberts reaffirmed that government bodies have “wide discretion” to regulate abortion “where there is medical and scientific uncertainty.” If those words have meaning, then the Supreme Court must reinstate the FDA’s patient protections while this lawsuit continues. It is true, after all, that lives are at stake.
Denise Harle is senior counsel with the Alliance Defending Freedom Center for Life (@Alliance Defends). Harle served as Florida’s deputy solicitor general from 2015 to 2017.