The Supreme Court’s Abortion Exceptionalism — Judicial Deference, Medical Science, and Mifepristone Access

This article critiques the U.S. Supreme Court’s 2021 decision in FDA v. ACOG, which reinstated in person pickup requirements for mifepristone a key medication abortion drug during the COVID-19 pandemic. The authors argue that the Court’s reliance on the "shadow docket" (fast-tracked rulings without detailed reasoning) and its deference to the FDA’s unscientific restrictions reflect "abortion exceptionalism," where political considerations override medical evidence. Despite studies showing mifepristone’s safety (comparable to aspirin), the FDA maintained burdensome access barriers, disproportionately affecting low-income and rural patients. The piece highlights Chief Justice Roberts’ justification for judicial deference to regulators, contrasting it with dissenting justices’ objections to the undue burden on reproductive rights. The authors warn that such rulings undermine constitutional scrutiny of abortion restrictions and risk chilling medical practice. The article also discusses pending litigation (Chelius v. Azar) challenging the FDA’s pre-pandemic mifepristone rules as medically unjustified. Ultimately, the authors contend that the Court’s abdication of its oversight role threatens broader implications for public health and fundamental liberties beyond abortion.

This article critiques the U.S. Supreme Court’s 2021 decision in FDA v. ACOG, which reinstated in person pickup requirements for mifepristone a key medication abortion drug during the COVID-19 pandemic. The authors argue that the Court’s reliance on the "shadow docket" (fast-tracked rulings without detailed reasoning) and its deference to the FDA’s unscientific restrictions reflect "abortion exceptionalism," where political considerations override medical evidence. Despite studies showing mifepristone’s safety (comparable to aspirin), the FDA maintained burdensome access barriers, disproportionately affecting low-income and rural patients. The piece highlights Chief Justice Roberts’ justification for judicial deference to regulators, contrasting it with dissenting justices’ objections to the undue burden on reproductive rights. The authors warn that such rulings undermine constitutional scrutiny of abortion restrictions and risk chilling medical practice. The article also discusses pending litigation (Chelius v. Azar) challenging the FDA’s pre-pandemic mifepristone rules as medically unjustified. Ultimately, the authors contend that the Court’s abdication of its oversight role threatens broader implications for public health and fundamental liberties beyond abortion.