The Supreme Court's Abortion Exceptionalism

Abstract

On April 12, 2021, the Food and Drug Administration (FDA) temporarily lifted its decades-long restriction on access to medication abortion, which accounts for two in five abortions in the United States. The agency’s action renders moot the Supreme Court’s ruling three months earlier in the case of FDA v. American College of Obstetricians and Gynecologists. We believe FDA v. ACOG has troubling implications beyond medical care and public health. The ruling betrays a blind deference to regulators who ignore scientific facts in the name of politics.

The biggest question FDA v. ACOG raises — about the proper scope of judicial deference — goes beyond telemedicine, public health, or abortion access. Federal judges are charged with smoking out illegitimate grounds for impeding constitutional rights. That requires taking a hard look at the reasons agencies and legislature give to justify such restrictions. We believe the Supreme Court abdicates its duty by deferring this critical appraisal to regulators themselves.

Keywords: abortion, health care, telemedicine, judicial deference, constitutional rights, reproductive freedom, U.S. Supreme Court, Food & Drug Administration