This week Supreme Court Justice Samuel Alito gave the keynote address at the Federalist Societies national lawyers convention. In his strong remarks Justice Alito gave a factual assessment of the danger some of our most fundamental rights, such as religious liberty and the right to free speech, are in jeopardy of being treated as “second class” rights our judicial system. I would recommend watching the entirety of Justice Alito’s speech, but his portion on chemical abortion particularly stuck out to me. Justice Alito said:
While COVID–19 has provided the ground for restrictions on First Amendment rights, the District Court saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade (1973). At issue is a requirement adopted by the FDA for the purpose of protecting the health of women who wish to obtain an abortion by ingesting certain medications, specifically, mifepristone and misoprostol. Under that requirement, a woman must receive a mifepristone tablet in person at a hospital, clinic, or medical office. The FDA first adopted the requirement in 2000, and then included it in a package of safety requirements under express statutory authority in 2007. Over the course of four presidential administrations, the FDA has enforced this requirement and has not found it appropriate to remove it. During the COVID–19 pandemic, the FDA suspended in-person dispensing requirements for some drugs, but it evidently decided that the mifepristone requirement should remain in force.
Nevertheless, a District Court Judge in Maryland took it upon himself to overrule the FDA on a question of drug safety. Disregarding the Chief Justice’s admonition against judicial second-guessing of officials with public health responsibilities, the judge concluded that requiring women seeking a medication abortion to pick up mifepristone in person during the COVID–19 pandemic constitutes an “undue burden” on the abortion right, and he therefore issued a nationwide injunction against enforcement of the FDA’s requirement. The judge apparently was not troubled by the fact that those responsible for public health in Maryland thought it safe for women (and men) to leave the house and engage in numerous activities that present at least as much risk as visiting a clinic—such as indoor restaurant dining, visiting hair salons and barber shops, all sorts of retail establishments, gyms and other indoor exercise facilities, nail salons, youth sports events, and, of course, the State’s casinos. And the judge made the injunction applicable throughout the country, including in locales with very low infection rates and limited COVID–19 restrictions.
Justice Alito is right, and I am grateful for his eloquence and bravery.