The court’s three liberal justices said they would have denied the Trump administration’s request for a stay. In a dissenting opinion, Justices Sonia Sotomayor and Elena Kagan said federal government rules restricting dispensation of the abortion pill, mifepristone, are medically unnecessary and present “an unnecessary, unjustifiable, irrational, and undue burden” on women.
“Government policy now permits patients to receive prescriptions for powerful opioids without leaving home, yet still requires women to travel to a doctor’s office to pick up mifepristone, only to turn around, go home, and ingest it without supervision,” they wrote. They said the Trump administration failed to prove how it would be harmed by letting mail delivery of the pills to continue while courts weighed the merits of the case.
A short-handed Supreme Court in October had declined to intervene in the same case. That allowed abortion clinics to continue dispensing the pills via telemedicine and through the mail, which they say has kept patients and staff safer during the pandemic.
The Trump administration asked the Supreme Court to reconsider its request after Barrett joined the bench. The administration said continuing to enforce longstanding FDA rules on mifepristone, which was approved 20 years ago, “does not create a substantial burden on abortion access.”
The American Civil Liberties Union, which represented abortion clinics challenging the FDA rules, said no evidence has emerged during the pandemic showing it is riskier for patients to receive the pills at home rather than at a clinic. In a December filing with the Supreme Court, the group argued that with the virus surging nationwide, reinstating the rules would “subject patients to needless and grave health risks.”