WASHINGTON — A divided Supreme Court on Tuesday granted an appeal from Trump administration lawyers and restored a controversial abortion rule that requires women who want medication to end an early pregnancy to travel to a hospital or clinic to pick up the pills, despite the COVID-19 pandemic.
The justices, by a 6-3 vote, set aside a Maryland judge’s nationwide order that waived the in-person pickup rule on the grounds that it was medically unnecessary and posed a health risk for women during the pandemic. All six conservatives voted in the majority, and the three liberals in dissent.
The decision is the court’s first on abortion since Justice Amy Coney Barrett joined in late October to fill the seat of the late Justice Ruth Bader Ginsburg, solidifying conservatives’ control of the court.
The incoming Biden administration could seek to change the rule, but that could be a lengthy process.
A medical group representing 60,000 obstetricians and gynecologists sued earlier this year to challenge the in-person pickup rule as nonsensical during the pandemic, saying a woman could consult with a doctor via telemedicine but nonetheless was required to travel to a hospital to pick up pills that she could take at home.
But the Trump administration continued to fight against relaxing the rule, even temporarily. Last month, Jeffrey B. Wall, the acting solicitor general, urged the court to intervene and insisted there was no evidence “that requiring in-person visits as part of providing an abortion would substantially impede women’s access to abortion during the pandemic.”
In response, the doctors’ group said the administration had chosen the “most deadly phase” of the pandemic to try again to impose a travel requirement for pregnant women, even after it relaxed similar rules for patients seeking opioids like fentanyl.
After weeks of deliberation, the court issued a brief order granting the appeal on Tuesday.
Chief Justice John G. Roberts Jr. concurred in the result. “Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities,” whether state governors or, in this instance, federal agency officials. The other five conservative justices, including Barrett, did not write to explain their views.
In dissent, Justice Sonia Sotomayor said enforcing the rule was unreasonable. “The FDA’s policy imposes an unnecessary, unjustifiable, irrational, and undue burden on women seeking an abortion during the current pandemic, and because the government has not demonstrated irreparable harm from the injunction, I dissent,” she wrote. Justice Elena Kagan agreed; Justice Stephen G. Breyer said he, too, would have denied the appeal.