The Trump administration has asked a federal appeals court to reinstate a rule that has required women to visit a hospital, clinic or medical office to obtain an abortion pill during the COVID-19 pandemic.
A federal judge in Maryland agreed earlier this month to temporarily block enforcement of the rule. Justice Department attorneys asked U.S. District Judge Theodore Chuang to suspend his July 13 order while they appeal, but the judge refused on Thursday.
The 4th U.S. Circuit Court of Appeals on Wednesday docketed the government’s appeal of Chuang’s decision.
Chuang concluded that the “in-person requirements” for patients seeking medication abortion care impose a “substantial obstacle” to abortion patients and are likely unconstitutional under the circumstances of the pandemic.
The judge’s ruling will allow healthcare providers to arrange for mifepristone to be mailed or delivered to patients during the public health emergency declared by the HHS secretary. The U.S. Food and Drug Administration approved mifepristone to be used in combination with a second drug, misoprostol, to end an early pregnancy or manage a miscarriage.
The American College of Obstetricians and Gynecologists and other groups sued HHS and the FDA in May to challenge the rule. American Civil Liberties Union attorneys represent the groups.
Chuang didn’t set any geographic limitations on the preliminary injunction that he issued. However, the judge said the federal case would not eliminate any state’s ability to continue to regulate abortion medication “above and beyond” the FDA’s requirements.
Plaintiffs’ attorneys argued that the FDA’s in-person requirements infringe on women’s constitutional rights to an abortion and violate the due process clause of the Fifth Amendment.
Government lawyers have argued that the requirements are necessary to ensure that patients safely use mifepristone. Justice Department attorneys also claim the plaintiffs have no evidence that the rule has forced patients to forgo a medication abortion or undergo a riskier procedure due to pandemic-related delays.
“The court was wrong to conclude that plaintiffs are likely to show that the in-person requirements pose a substantial obstacle to abortion access,” they wrote in a court filing last Friday.
Meanwhile, on Wednesday, plaintiffs’ attorneys asked the judge to clarify whether his order allows clinicians to dispense mifepristone through mail-order pharmacies.
“If all deliveries of mifepristone must originate from a certified prescriber’s office and cannot originate from a designated mail-order pharmacy acting under the prescriber’s supervision, some medication abortion patients will continue to be forced to undertake needless travel and risk during this pandemic,” they wrote.