Thursday, April 8, 2021
Jareb A. Gleckel (Cornell University), Sheryl Wulkan (Hofstra University), Abortion and Telemedicine: Beyond COVID-19 and the Shadow Docket, UC Davis L. Rev. Online (Forthcoming, 2021):
This Article examines the Supreme Court’s recent shadow docket opinion in FDA v. American College of Obstetricians and Gynecologists (ACOG)—not just its present effects, but its bigger-picture implications for the future of abortion jurisprudence. In FDA v. ACOG, the Court, without full briefing or argument, stayed a Maryland court’s injunction against the FDA. In doing so, it allowed the FDA to continue enforcing its “in-person requirement,” forcing women to travel to pick up abortion medication during the COVID-19 pandemic. Parts I and II of this paper review the Court’s abortion jurisprudence and the opinion in FDA v. ACOG. Part II also suggests that FDA v. ACOG is inconsistent with the Court’s contemporaneous “shadow docket” opinions—summary opinions that enjoined states’ restrictions on church gatherings during the pandemic. Part III then explores the impact that FDA v. ACOG could have on abortion jurisprudence in a post-pandemic world. We first speculate about a post-pandemic United States where the Court continues to recognize abortion as a constitutionally-protected right. We argue that, while “in-person requirements” impede women seeking abortions, they also, ironically, make it harder for states to pass laws restricting access to abortion under contemporary case law. We then contemplate a parallel post-pandemic universe in which the Court overturns Roe v. Wade and stops recognizing the right to abortion. If the Court decides that abortion is not a fundamental right, as pro-choice liberals fear, it will be the in-person mifepristone requirements, or lack thereof, that determine the severity of that decision for many women in the United States. In a world without Roe, in-person requirements would maximally restrict women’s access to abortion.