The Court and the Abortion Pill

July 26, 1992

In a ruling that is surely not the last word, the Supreme Court this month sidestepped the question of whether women can legally use the French-made abortion drug RU-486. Leona Benten, a 30-year-old California woman, had a surgical abortion in 1983. Saying she feared to undergo the procedure a second time, she purchased a single dose of RU-486 in Britain, where it is legal, and brought it back to this country July 1.

U.S. Customs officials, alerted to her arrival in New York, confiscated the pills because they have not been approved by the Food and Drug Administration. Ms. Benten asked a federal district court to order the government to return the pills on the grounds the FDA's ban had been adopted illegally and in response to political pressure from anti-abortion members of Congress. A trial judge agreed, but the New York circuit court immediately stayed his injunction. Ms. Benten, who was nearly eight weeks pregnant, then asked the Supreme Court to lift the stay so she could take the drug before its recommended period for use expired.

The high court refused her request on a 7-2 vote, though Justice John Paul Stevens in dissent noted that, under the court's most recent decision, the ban on RU-486 probably represented an "undue burden" on a woman's right to abortion. The majority declined to consider that question because it had not been raised in the lower court. Thus, the court upheld the ban on procedural grounds without ruling on its constitutionality.

It appears the court hoped to avoid another controversial abortion ruling this election year. Ms. Benten just as clearly intended to test the federal ban -- she could, after all, have taken the pills before she returned to this country. RU-486 must be taken before the ninth week of pregnancy. She now says she is opting for a surgical abortion. But the basic issue of this case is bound to return to the courts in the coming year. Then the high court will have to address the constitutional question surrounding the FDA ban on this abortion drug.

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