The Supreme Court punted on the major abortion cases it heard during the term that ended last month. And while the Court’s inaction was initially celebrated, it means we head into the 2024 election with some of the biggest threats to the procedure delayed, but not permanently denied.
One case is all but certain to return; others have been steadily working their way up the federal judiciary in the meantime.
The Term’s Unexploded Landmines
This term’s Dobbs lite was the push to get mifepristone off the market across the country: FDA v. Alliance for Hippocratic Medicine. The case was lodged by a hastily organized group of anti-abortion doctors, none of whom could relay an episode where they were injured due to the availability of the medication, and for this reason teetered upon dubious standing. The doctors’ lawyers were left to concoct hypotheticals in which their clients might one day have to treat a woman suffering from (actually very rare) mifepristone complications.
The standing deficiencies — and the sheer tonnage of lawsuits that would be unleashed were the Court to greenlight such tenuous standing — proved too much. The justices were unanimous in their disapproval.
But anti-abortion attorney Erin Hawley told reporters that she expected the case to continue, with intervening red states as the plaintiffs swapped in for the injury-free doctors. Experts TPM spoke with were skeptical that the gambit would be any more successful than the first attempt.
“You need somebody harmed by the medication or the person who prescribed it — I think they’ll have a hard time bringing that case again,” Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, told TPM. “You might get Kacsmaryk to go along with some strategy for a while,” Hill said, naming the infamous anti-abortion U.S. district judge in Texas, “but I don’t think it’s going anywhere.”
Those same abortion law experts were less sanguine about the term’s other major and unsettled abortion case, Moyle v. United States, a battle between federal emergency room requirements and state abortion bans.
There, the Biden administration insists that The Emergency Medical Treatment and Labor Act (EMTALA), which mandates that emergency rooms stabilize patients in crisis, includes abortions if that’s the care needed, no matter state restrictions. Petitioner Idaho’s ban only includes an exception to avoid the death of the woman, which the government argues is a much narrower allowance. The situation on the ground backs up this reading of the conflict, as Idaho hospitals attest that they’ve been airlifting pregnant patients to neighboring states to avoid prosecution.
Justice Ketanji Brown Jackson, writing alone on the per curiam decision to boot that case back to the 9th Circuit Court of Appeals, warned that “storm clouds loom ahead.”
“Today’s decision is not a victory for pregnant patients in Idaho,” she wrote at the time. “It is delay.”
The case is bound to return to the Supreme Court, where conservatives made clear during oral argument that they were seeking rhetorical cover to let the state bans supersede the federal requirements by pretending that there is no daylight between what the two demand.
It would be an enormous blow to the women most at risk from abortion bans, those far enough along in their pregnancies to be facing death or lasting injury if they can’t get emergency abortions.
An Unprecedented Term Unlocks New Anti-Abortion Crusades
Some seemingly unrelated decisions from the Court’s term could also tentacle out into abortion cases bound for the same destination. The Supreme Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo, demolishing a pillar of federal agency power that conservative judges have been chipping away at for years.
The Alliance Defending Freedom, a right-wing group behind many high-profile abortion challenges (including the one to mifepristone), giddily listed in a brief for that case the abortion rights and protections for women and LGBTQ Americans that may be open to attack in a Chevron-less world. They included the lifting of mifepristone restrictions, the government’s reading of EMTALA, the expansion of bans on sex discrimination and protections of Title IX.
“Federal agencies routinely use unclear or inapposite statutory language to impose mandates and spend tax dollars that injure the right to life, devalue religious freedom, and contradict important biological distinctions based on sex,” the brief said.
In a separate case, Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the Court’s decision to drastically expand the statute of limitations in which someone can challenge agency actions could also be used to attack the availability of mifepristone in particular.
Other Cases Bubbling Up
Meanwhile, other cases are wending their way through the federal courts.
One bucket of them, with active cases out of Idaho, Texas and Alabama, center on the legal liability of providers, clinics and abortion funds when they refer residents of states with a ban to out-of-state care. In Texas in particular, anti-abortion lawyer Jonathan Mitchell is trying to use his bounty hunter-style abortion ban so expansively that these referrals would count as “aiding and abetting” an abortion. He’s already going after women, at the behest of their ex-boyfriends, to depose them for their alleged out-of-state abortions.
In a similar vein, red states have also challenged the Biden administration’s guidance that Title X providers must offer patients abortion referrals upon request.
“I expect one of those to come before the Supreme Court — that’s definitely a Chevron question,” Hill said of the Title X cases.
There is also a percolating attempt to bankrupt Planned Parenthood that alleges Medicaid fraud. The anti-abortion movement’s white whale began, where else, in the amenable court of Judge Kacsmaryk, though it is currently at the Fifth Circuit on Planned Parenthood’s appeal.
Creative attempts to use the courts to fight against abortion restrictions are in the works as well.
A doctor in North Carolina recently notched a partial victory in federal district court, where she successfully argued against some state mifepristone restrictions that go beyond what the Food and Drug Administration has imposed. That case is currently at the 4th Circuit Court of Appeals. GenBioPro, a manufacturer of mifepristone, lodged a similar challenge in West Virginia; that case is also at the 4th Circuit.
And in Idaho state court, the Center for Reproductive Justice is arguing that the state’s extremely narrow abortion ban exception deprives patients of their state constitutional right to life, happiness and safety, and deprives providers of their property rights, as it would strip them of their medical licenses without due process.
“This question was left open by Dobbs,” Hill said. “Individuals have some sort of basic fundamental right to not have the government kill you — a right to not be harmed.”
Backdrop of the Election
While there are inarguably major abortion cases headed to (or back to) the Supreme Court, the 2024 election is unfurling without major, new headlines about the Supreme Court restricting abortion (at least so far). While some think this was deliberate political calculation on the part of the right-wing justices, others think it won’t matter. Two years out from Dobbs, they argue, the electorate’s anger about the restriction of abortion is simply baked in.
“It’s an important election issue regardless of whether the Court punts or not. People who care have not forgotten,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, told TPM. “The stories of emergency pregnancy complications resulting in the need for emergency reproductive healthcare have sunk into the American conscience regardless of the Supreme Court.”
In fact, the three-week sea change in the election stemming from President Joe Biden’s dropping out of the race and Vice President Kamala Harris becoming the Democratic nominee may actually bring abortion more aggressively to the fore.
“We now have someone running for president who says the word ‘abortion,’ a true believer in abortion rights who can convincingly make them a central part of her campaign,” Cohen said.
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