This is an important public health measure that will improve access to safe early abortion care during the COVID-19 pandemic. The judge’s order will take effect in a few days and applies nationwide.
The preliminary injunction was issued in response to a lawsuit by the American College of Obstetricians and Gynecologists, SisterSong Women of Color Reproductive Justice Collective, and others. The organizations asked the court to bar the FDA from enforcing its restrictions on medication abortion during the COVID-19 pandemic. The FDA does not allow mifepristone to be stocked in neighborhood pharmacies and requires pregnant people to travel to pick up the pill in-person from specially certified clinicians, despite the fact that patients may take both pills at home, and the abortion always occurs at home. The plaintiffs argued that the FDA’s decision to retain these restrictions during the COVID-19 pandemic created an undue burden on pregnant people’s right to abortion, and disproportionately affected women of color, who are more likely to live in communities with higher rates of infection. The court agreed with these arguments and also took into account that the FDA waived similar restrictions on other medications early in the pandemic.
The court’s decision echoes and supports requests sent to the FDA by the NWHN, other women’s and consumer health organizations, and members of Congress, all of whom have asked the agency to immediately drop restrictions on the abortion pill, in light of the COVID pandemic. Our request of the FDA, however, goes beyond the court’s ruling in important ways.
The court’s order will only last as long as the Department of Health and Human Services determines that the COVID-19 pandemic is a public health emergency and the current public health emergency will expire on July 25, if not renewed. If that occurs, the FDA may once again enforce its medically unjustified requirement that pregnant people travel to clinics merely to pick up a pill they can take at home. We will continue to advocate for the FDA to permanently drop its restrictions on medication abortion.