Since the start of the pandemic, medical groups and patients have argued that with many medical offices operating under strict limitations, a trip to the office to receive the pills is not only inconvenient and possibly dangerous, but medically unnecessary given doctors’ ability to consult with and evaluate their patients by telemedicine. Under the circumstances, Judge Chuang wrote, “the in-person requirements impose a substantial obstacle to abortion patients seeking medication abortion care.”
Judge Chuang wrote his opinion in the weeks following the Supreme Court’s ruling in the June Medical case. Taking account of the chief justice’s separate opinion, he said that “June Medical Services is appropriately considered to have been decided without the need to apply or reaffirm the balancing test of Whole Woman’s Health, not that Whole Woman’s Health and its balancing test have been overruled.” He continued, “Where Whole Woman’s Health remains the most recent majority opinion delineating the full parameters of the undue burden test, the court finds that its balancing test remains binding on this court.”
Unsurprisingly, the Trump administration has gone to the United States Court of Appeals for the Fourth Circuit for a stay of Judge Chuang’s opinion while it prepares a formal appeal. “A one-time clinic visit, even if an obstacle, is not a substantial one,” the government lawyers argue, observing that in any event, it was the pandemic and not the F.D.A. that is responsible for any obstacles women might face in obtaining a medication abortion during the first 10 weeks of pregnancy, the window during which that method is available. (We might deem this the “it is what it is” method of legal analysis.) “There is no constitutional right to an abortion method of one’s choice,” the brief continues.
While the administration’s brief refers in passing to the chief justice’s separate opinion in Whole Woman’s Health, Indiana and 10 other states argue vigorously in a brief on the administration’s behalf that the undue-burden test is now narrower than Judge Chuang understood it to be. “A balancing test that would invalidate laws without a substantial obstacle lies outside common ground shared with the chief justice, and therefore does not control,” the states argue.
We may not have to wait long to see what remains of abortion law. If the Fourth Circuit denies the stay, it’s predictable that the administration will bring the issue directly to the Supreme Court, as it’s doing these days at a rate that would have appeared astonishing just a few years ago. And why not? The door, after all, is open.
I’ll end this column by recounting my experience this week with the country’s rapidly imploding election system. My home state, Connecticut, this year is offering absentee ballots on request, no excuse needed, and in fact mailed ballot applications to all registered voters weeks before Tuesday’s primary. I mailed my application, but the ballot never came. So Tuesday morning, my husband, who mysteriously had received his ballot, and I drove two hours from western Massachusetts so that I could vote in person in New Haven. “I never received my absentee ballot,” I said to one of the poll workers. “Oh yes, I hear there’s been a problem,” she said. If this primary election was in the nature of a dry run, it was a dry run to disaster in November.
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