Maryland Court Rules FDA Cannot Mandate In-Person Dispensation of Abortion Drugs During Pandemic

On Wednesday, in the District of Maryland, the Honorable District Judge Theodore D. Chuang kept in place his earlier injunction from July that enjoined the Food and Drug Administration (FDA) from requiring that abortion-inducing medications be dispensed in-person during the COVID-19 pandemic. 

During the underlying litigation, the American College of Obstetricians and Gynecologists joined by other associations promoting the safe and remote access to abortion medications sued the FDA and the United States Department of Health and Human Services (DHHS) for allowing most drugs, including opiates, to be dispensed remotely during the COVID-19 pandemic, but excepting all abortion-inducing pharmaceuticals. Judge Chuang, at the time of granting the initial injunction, explained that the plaintiffs easily proved irreparable harm given the devastating public health consequences of the present pandemic. 

The defendants attempted to appeal the injunction to the Fourth Circuit and subsequently the Supreme Court. On October 8, the Supreme Court issued an order mandating that Judge Chuang “promptly consider the motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed.” 

Judge Chuang explained how the relevant circumstances concerning the  COVID-19 pandemic had changed, but only to worsen from the time of the issuance of the initial injunction. As of “December 5…(the US) had approximately 14.5 million total cases…(and) more than 280,000 deaths….” These numbers, the court concluded, indisputably warrant continuing to allow for the remote dispensation of abortion-inducing drugs, as the FDA permitted for drugs of most other classes. 

The plaintiffs are represented by Arnold & Porter.