Still Awaiting A Decision From The Supremes: Will They Step Into The “COVID-Time” Mifepristone Delivery Mechanics Case?

More often than any prior president. . . in over a century, minimum — Trump has incessantly tried to leapfrog the federal judicial review of lower court decisions he doesn’t like — by going straight to the Supremes — arguing “emergencies” of various dubious sorts exist. This is one of those. [Prior backgrounder, here.]

Here is the college of family doctors’ fine brief — arguing that the Supremes should not step in at this point — still prior to a final appellate level order, and a bit:

. . .Defendants now ask this Court to step in while this case is before the court of appeals and strip the nation’s health care providers—including Plaintiffs American College of Obstetricians and Gynecologists (“ACOG”) and Council of University Chairs of Obstetrics and Gynecology (“CUCOG”), supported by amici including American Medical Association (“AMA”) — of the urgent relief they need to protect their own safety and that of their patients, staff, and families during the pandemic. Defendants have not met the “especially heavy burden” they bear on such an overriding stay petition. Edwards v. Hope Med. Grp. for Women, 512 U.S. 1301, 1302 (1994) (Scalia, J., in chambers) (quotation marks and citation omitted).

Recognizing the importance of avoiding travel and interpersonal contact during the PHE, Defendants have taken “extraordinary actions” to reduce viral transmission by suspending in-person requirements for drugs, including potentially lethal controlled substances like opioids, and urging the use of telemedicine “whenever possible.” App. 43a-44a. However, when it comes to medication abortion, the FDA forces patients to travel to a hospital, clinic, or medical office just to pick up the medication and sign a form (the “Requirements”) — even though the agency does not require any in-person examination, any in-person counseling, or that the patient swallow the pill while in the office. Of more than 20,000 FDA-approved drugs, mifepristone is the only one that patients must pick up in person in a clinical setting but are permitted to self-administer elsewhere, unsupervised. . . .

The good news, in all of this is that Trump, and his political appointees (as a group) are so monumentally incompetent, they actually tend to slow their own “progress”, on his hate-agenda, as they so regularly miss the mark, on complying with existing federal civil procedural law. This, as I said at the head — is one of those. I predict the Supremes will decline to get involved at this point. Onward — smile.


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