Federal Court Upholds ACLU Victory, Blocks Policy That Exposes Abortion Patients to Unnecessary COVID-19 Risk

WASHINGTON — Rejecting new arguments from the Trump administration that COVID-19 no longer presents a serious threat, the U.S. District Court for the District of Maryland upheld today its earlier decision blocking a U.S. Food and Drug Administration (FDA) policy that needlessly endangers abortion patients during the pandemic. This decision means abortion patients can continue to obtain mifepristone by mail or delivery, including through mail-order pharmacies, during the public health emergency.

This ruling comes pursuant to a Supreme Court order that the lower court consider new evidence in the ACLU’s challenge to an FDA regulation that forces patients seeking medication abortion care to travel to a health center during the pandemic for the sole purpose of picking up a pill and signing a form. Despite clear evidence and warnings from its own infectious disease experts that the pandemic is worsening, the Trump administration filed a new motion on Oct. 30 arguing that abortion patients should again be forced to travel unnecessarily to a health center because the risks and burdens of COVID-19 have all been “removed or significantly mitigated.”

During the pandemic, this in-person pill pick-up requirement — which applies even when a patient has already been evaluated by a clinician using telehealth or at a prior in-person visit and will be receiving no medical services at the time — exposes patients to needless COVID-19 risks related to transportation, child care, and other interpersonal contact. Of the 20,000 drugs the FDA regulates, mifepristone is the only one that the FDA requires patients to pick up in person at a health center even though they may take it later at a time and place of their choosing.

“The Trump administration’s argument that this travel mandate for abortion patients no longer poses significant COVID-19 risks is violently out of touch with reality,” said Julia Kaye, staff attorney with the ACLU Reproductive Freedom Project. “With five million new cases in just the past four weeks and soaring hospitalization and death rates—particularly in communities of color—the Trump administration’s claim that COVID-19 is no longer a serious threat would be laughable if it weren’t so cruel. It’s past time the outgoing administration accept defeat—and the FDA turn its attention to a long overdue, comprehensive review of its unnecessary and harmful restrictions on this safe medication used for abortion and miscarriage care.”

The following are statements from the plaintiffs:

Eva Chalas, M.D., FACOG, FACS, president of ACOG:
“ACOG is pleased that the court rejected the government’s motion to reinstate the FDA’s in-person dispensing requirements for mifepristone for abortion. ACOG’s nearly 60,000 members remain on the front lines of the COVID-19 pandemic and they know firsthand that the pandemic is worsening across the country. Now is not the time to impose burdensome requirements on clinicians and patients that risk increased exposure to a life-threatening virus. Mifepristone is safe and effective medication that does not require in-person dispensing to patients – especially during a pandemic when people’s lives are at stake.”

Monica Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective:
“As we enter this dark pandemic winter and Black, indigenous, and people of color continue to be hospitalized and die from COVID-19 at dramatically higher rates, the last thing we need is a federal government actively working to expose our people to greater viral risks. We are thankful the court came through today, but it is outrageous that the Trump Administration thinks this common-sense safety issue should still be up for debate.”

David Chelmow, M.D., president of the Council of University Chairs of Obstetrics and Gynecology:
“This court ruling is yet another affirmation that the mifepristone REMS is long overdue for renewed scrutiny to ensure the safety of patients both during and after the pandemic. It is past time that these unscientific and harmful restrictions on essential reproductive health care are eliminated.”

Jason Matuszak, M.D., FAAFP, President of New York State Academy of Family Physicians:
“With rising COVID-19 infections, hospitalizations, and deaths in New York and across the country, it is critical that the in-person dispensing requirement stays blocked—and we are gratified that the court agreed today. Health care providers are making heroic efforts to provide the safest possible care to our patients at this unprecedented time, and the federal government should be making our jobs easier, not harder.”

The plaintiffs in the case are the American College of Obstetricians and Gynecologists, the Council of University Chairs of Obstetrics and Gynecology, New York State Academy of Family Physicians, SisterSong Women of Color Reproductive Justice Collective, and an individual family medicine physician. The litigation is supported by the American Medical Association.