Democratic AGs Return Fire In High Court Abortion Pill Row

By Kevin Stawicki
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Law360 (September 8, 2020, 7:43 PM EDT) -- Nearly two dozen Democratic attorneys general asked the U.S. Supreme Court on Tuesday to stay out of a fight over the U.S. Food and Drug Administration's limits on abortion medication access, saying the agency's rules threaten public health during the coronavirus pandemic.

In an amicus brief filed Tuesday, New York, California and 21 other states opposed the FDA's recent request that the justices undo an injunction blocking the agency's restrictions on patients' ability to get Mifeprex, a pill that ends pregnancy at up to 10 weeks, at a retail pharmacy.

The FDA's requirements would put patients' lives at risk by forcing them to potentially contract COVID-19 to obtain the so-called abortion pill and contravene the states' efforts to minimize in-person interactions through stay-at-home orders and expanded access to telehealth, the states said in the brief.

"Amici have utilized such measures to control the spread of the virus, and these measures remain necessary to safely reopen communities, allow for essential in-person activities, and maintain healthcare capacity during the upcoming flu season," the attorneys general said.

The Fourth Circuit was on solid ground when it refused to lift an injunction, which determined that the FDA's restrictions requiring patients to be handed the medication at a clinic or hospital by a preregistered health care provider were an "undue burden," the states argued.

Tuesday's amicus brief comes a week after Texas, Indiana and eight other states backed the FDA's request to hit pause on the injunction, resting their argument on the need for the justices to clarify their ruling in June Medical Services v. Russo, which struck down a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals.

The red states specifically asked for clarification of a concurrence by Chief Justice John Roberts, who said the law should be invalidated but that judges hearing abortion challenges should not engage in a "balancing test" of competing interests between the government and the abortion patient.

"If, in granting the stay application, the court could at least clarify whether lower courts should balance benefits and burdens of abortion regulations — as the district court did here — or merely examine the record for evidence of a substantial obstacle — as the chief justice indicated in his June Medical concurrence — lower courts could address those pending disputes using the proper test," the Republican states wrote.

The red states also took the opportunity to drive home their argument that state and federal laws requiring women to undergo physical examinations and obtain mifepristone in person to protect against risks including infection, hemorrhage or death "are not unduly burdensome even in the current public health emergency."

In late August, the FDA said its request to stay the injunction meets all the factors warranting a green light from the justices, in particular that there's a high likelihood that the court will eventually grant certiorari of the lower court's decision.

The FDA maintains that U.S. District Judge Theodore D. Chuang improperly used the cost-benefit balancing test rejected by Chief Justice Roberts when he should have adhered to the test that considers whether the law imposed a burden on women seeking abortions.

Whether June Medical eliminated the cost-benefit test for abortion laws was a question that immediately arose after the justices decided the case in June. The Supreme Court created the test four years ago in Whole Woman's Health v. Hellerstedt, while simultaneously saying the test had essentially existed since 1992 when the Supreme Court in Planned Parenthood v. Casey barred laws that impose an "undue burden" on abortion access.

If the cost-benefit test no longer exists after June Medical, it will be easier for anti-abortion laws and regulations to withstand legal challenges, as some courts applying the test have found that many abortion laws lack significant medical benefits.

The suit, filed by the American College of Obstetricians and Gynecologists and other physician groups in May, claims the restrictions violate a patient's rights to equal protection of the law under the U.S. Constitution and that COVID-19 only heightened the risk for women seeking the pill.

Counsel and representatives for the parties did not immediately respond to requests for comment Tuesday.

The physician groups are represented by Julia Kaye, Anjali Dalal, Ruth Harlow, Rachel Reeves and Jennifer Dalven of the American Civil Liberties Union Foundation and John A. Freedman, R. Stanton Jones, David J. Weiner, Jocelyn A. Wiesner, Andrew Tutt and Gina Colarusso of Arnold & Porter.

The FDA is represented by Joshua Dos Santos of the U.S. Department of Justice's Civil Division and acting Assistant Attorney General Ethan P. Davis and Senior Counsel to the Assistant Attorney General Sophan Joshi.

The case is U.S. Food and Drug Administration et al. v. American College of Obstetricians and Gynecologists et al., case number 20A34, in the U.S. Supreme Court.

--Additional reporting by Jimmy Hoover and Craig Clough. Editing by Steven Edelstone.

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