Supreme Court Abortion Rulings Could Set the Stage for Further Restrictions

On the surface, abortion rights have had a good run on the Supreme Court this term. Two weeks ago, the justices unanimously let the abortion pill remain widely available. On Thursday, the court rejected a case over Idaho’s strict abortion ban, which has had the effect of allowing the state’s emergency rooms to perform the procedure when a patient’s health is at risk.

But the two rulings were so technical as to be ephemeral. They seemed designed to evade and delay, to kick a shaky argument down the road — or at least after Election Day.

Some abortion-rights advocates have called the rulings Pyrrhic victories, fearing they would pave the way for further restrictions, either by the courts or by a second Trump administration.

In Dobbs v. Jackson Women's Health Organization, the 2022 decision that overturned Roe v. Wade, the Supreme Court signaled that it was trying to get out of the abortion business. “The authority to regulate abortion must be returned to the people and their elected representatives,” Justice Samuel A. Alito Jr. wrote for the majority.

The two recent rulings have been generally consistent with that sentiment, though Justice Alito himself was eager to take up Thursday’s case. “It appears,” he wrote, “the court has simply lost the will to decide the easy but emotional and highly politicized issue that this case presents. This is unfortunate.”

The majority has a different opinion, but the evasive strategy cannot last, said Mary Ziegler, a law professor at the University of California at Davis.

“What is clear, both in this mandate and in what will likely come next, is that the fight against abortion is not left to the states,” he said. “The executive branch and the Supreme Court will continue to have their say.”

David S. Cohen, a law professor at Drexel University, said the end of Roe was the beginning of a war in which each side seeks total victory. That means, he said, the Supreme Court will not be able to avoid difficult questions in the long run.

“In both cases,” he said of this month's decisions, “the court avoided addressing the quagmire created by the overturning of Roe v. Wade. Without a national right to abortion care, controversial cases like these will return to the court again and again. The court will not be able to avoid its self-imposed mess forever.”

He added: “Neither side in this debate will stop fighting for their preferred outcome: a national rule applicable everywhere. So there is no doubt that we will see more and more cases like this make their way to the Supreme Court in the coming years.”

The two sentences solved almost nothing.

The first simply said that doctors and groups challenging the Food and Drug Administration's approval of an abortion pill had not suffered the kind of harm that gave them the right to sue. The court did not rule on the legality of the agency's action.

Other challengers, notably three states that have already intervened in the court case — Idaho, Kansas and Missouri — will continue to fight. Their challenge could reach the Supreme Court fairly quickly.

The Idaho case was even more of a non-event. The court, which had taken the unusual step of agreeing to review a lower court's ruling before an appeals court acted, thought better of getting involved at such an early stage

The court dismissed the case as “suddenly granted,” the judicial equivalent of saying “it doesn't matter.” After the ruling by the appeals court, the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court could return to the case.

Or it could hear an appeal involving a substantially similar Texas law that was upheld by the Fifth Circuit. The Biden administration has already filed a petition seeking a review of that ruling.

“Both decisions seem to me to be Pyrrhic victories for the Biden administration,” Professor Ziegler said. In the abortion pill case, Food and Drug Administration v. Alliance for Hippocratic Medicine, he said, the court interpreted the conscience protections of anti-abortion doctors much more broadly than it had in previous decisions.

In the emergency abortion case, Moyle v. United States, Professor Ziegler said that Justice Amy Coney Barrett “alluded to the importance of conscience protections and expressed suspicions about mental health justifications for abortion, both of which could have consequences in the future.”

Rachel Rebouché, dean of Temple University's Beasley Law School, said that “these decisions cannot be described as pure victories for abortion advocates.”

“The issues at the heart of both cases will certainly return to the court,” he said. “The court has not ruled on the merits in either decision, and there are already cases in the pipeline to test the legality of mailed medical abortion and to uphold state abortion laws that do not make exceptions to prevent serious injury or health threats.”

The upcoming election may have played a role in the Supreme Court’s failures. After all, the Dobbs ruling, issued months before the 2022 midterm elections, was a political boon for Democrats.

Greer Donley, a law professor at the University of Pittsburgh, said the court's conservative majority may have wanted to avoid “an unpopular merit-based abortion decision in an election year.”

Professor Ziegler said she was unsure how the election figured into the court’s calculations.

“It would have been extraordinary for the court to issue two major rulings in an election year, and it is fair to assume that the court's more institutionalist justices were looking for a way to avoid that outcome,” he said. “At the same time, there were real reasons to defer sentencing on the merits in both cases.”

He added: “This means that there is no irrefutable evidence to suggest that this is an about-face ahead of the election – after all, why deal with these cases in an election year? – but it seems quite likely that the next election will have made it even more more tempting to postpone the decision.”

If Trump wins, much of the controversy in the two cases could be resolved with executive action. His administration could roll back the emergency room care guidelines at issue in the Idaho and Texas cases, and it could interpret an old law, the Comstock Act, to try to ban the mailing of abortion pills.

However, whatever one may say about the direction of the Supreme Court's abortion jurisprudence, Professor Cohen said, it is important not to lose sight of who won and who lost in the two recent decisions.

“The anti-abortion movement has had big swings with these cases and has failed in both,” Professor Cohen said. “They couldn't stop abortion pills, nor could they stop federal law from overriding state abortion bans. That may change in the future, but right now they're 0-for-2 behind Dobbs.

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