The Supreme Court's Abortion Exceptionalism

New England Journal of Medicine, vol. 384, year 2021

San Diego Legal Studies Paper 21-018

8 Pages Posted: 29 Apr 2021 Last revised: 19 May 2021

See all articles by Dov Fox

Dov Fox

University of San Diego: School of Law

Erin Cole

University of San Diego, School of Law, Students

Date Written: April 29, 2021

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

Suggested Citation

Fox, Dov and Cole, Erin, The Supreme Court's Abortion Exceptionalism (April 29, 2021). New England Journal of Medicine, vol. 384, year 2021, San Diego Legal Studies Paper 21-018, Available at SSRN: https://ssrn.com/abstract=3836628

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: https://www.sandiego.edu/law/about/directory/biography.php?profile_id=3332

Erin Cole

University of San Diego, School of Law, Students ( email )

San Diego, CA
United States

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