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Doctors sue to block FDA abortion pill rule during pandemic

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SILVER SPRING, Md. — Requiring patients to visit a hospital, clinic or medical office to get an abortion pill is needlessly risking their health during the COVID-19 pandemic, a group of physicians alleges in a lawsuit that seeks to suspend the federal rule.

The federal lawsuit, which the American Civil Liberties Union filed Wednesday in Maryland, questions why patients can’t fill a prescription for mifepristone by mail. The US Food and Drug Administration approved mifepristone to be used in combination with a second drug, misoprostol, to end an early pregnancy or manage a miscarriage.

“Of the more than 20,000 drugs regulated by the FDA, mifepristone is the only one that patients must receive in person at a hospital, clinic, or medical office, yet may self-administer, unsupervised, at a location of their choosing,” the lawsuit says.

The ACLU sued the FDA and US Department of Health and Human Services on behalf of the American College of Obstetricians and Gynecologists and other groups. It marked the latest battle over access to abortions during the pandemic. Elsewhere, federal courts have heard cases involving access to abortion services as the outbreak continues.

More than four million people in the US have used mifepristone and misoprostol to end an early pregnancy; the two-drug combination accounted for 39 percent of all US abortions in 2017, the lawsuit says.

The lawsuit says the FDA rule has “particularly severe implications for low-income people and people of color, who comprise a disproportionate share of impacted patients and who are already suffering and dying from COVID-19 at substantially higher rates.”

“During the COVID-19 pandemic and associated unemployment crisis, low-income patients are particularly likely to struggle to pay for and arrange travel,” the suit says.

In 2017, the ACLU filed a lawsuit in Hawaii that challenged the FDA limits on where women can get the abortion pill. In January, a federal judge suspended the Hawaii case until the US Supreme Court rules in a separate abortion-related lawsuit from Louisiana. The Louisiana case could determine whether doctors and clinics have a right to challenge abortion restrictions in federal courts.

Julia Kaye, staff attorney at the ACLU Reproductive Freedom Project, said the Trump administration apparently would rather endanger the lives of patients and doctors than lift “an unnecessary barrier to abortion care.”

“At every other turn during this pandemic, the federal government is trying to make it easier for patients to get the medical care they need without unnecessary health care visits that jeopardize their safety,” Kaye said.

After Texas Republican Gov. Greg Abbott issued an executive order in March that barred non-essential medical procedures during the pandemic, Texas’ Republican attorney general said that providing abortions other than for an immediate medical emergency would violate the order. A federal appeals court ruled last month that Texas can ban medication abortions to fight the spread of COVID-19.

Earlier this month, a federal judge rejected a request by Arkansas’ only surgical abortion clinic to prevent the state from enforcing a rule requiring a negative coronavirus test before a woman undergoes the procedure.

FDA Commissioner Stephen Hahn and HHS Secretary Alex Azar also are named as defendants in the suit.

In March, dozens of anti-abortion advocates signed a letter to Azar in which they called for halting abortion procedures during the pandemic. “Their continued operation depletes sorely needed personal protective equipment and leads to complications that will further overwhelm already overextended emergency rooms,” the letter said.

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