Supreme Court can’t dodge abortion cases

The Supreme Court is finding itself at the center of questions surrounding access to an abortion less than two years after the conservative majority said judges would no longer be the ultimate deciders of such policy.  

The court will hear two cases on abortion this term, both dealing with a clash between federal law and the near-total abortion bans of red states. More cases are making their way through the legal system and likely will reach the Supreme Court.

Legal experts said the Dobbs ruling overturning the Roe v. Wade decision was never going to be the final say and that leaving decisions to states was unrealistic.

Yet that is essentially what the majority said in its 2022 decision when it argued that “nine unelected members” of the court do not possess the authority to “override the democratic process” and set an abortion policy for the entire country. 

“I think the idea that abortion law would become only state domain, that the Court would bow out of abortion decisions, or that the post-Dobbs legal landscape would be more ‘workable’ was always misguided and impossible,” Rachel Rebouché, dean of the Temple University School of Law, wrote in an email.  

Abortion pill access

One of the two cases the court will hear this term concerns access to the abortion pill mifepristone, while another concerns whether a federal emergency care law applies to women who need abortions.   

The justices in December granted a request to hear an appeal from the Justice Department and a drug manufacturer regarding the legality of federal policies to expand access to the drug. 

No date has been set for oral arguments, but they likely will occur this spring with a decision expected by the end of June. 

The outcome likely will impact the health of millions of people, even in states that don’t restrict or ban abortion. Mifepristone is the most common method of terminating a pregnancy, used in about half of all abortions nationwide.   

Although the court will not hear arguments about the legality of the drug’s approval, a ruling against the Biden administration likely would significantly restrict access to the drug.  

Medical exceptions to to abortion bans

The other case involves the medical exceptions to abortion bans, and whether the federal government can force physicians in hospitals that accept federal funding to provide abortions in instances where they are needed to stabilize a patient.  

The case in question is specifically about Idaho. The state’s Defense of Life Act is a “trigger law” that took effect after the Supreme Court ended the constitutional right to an abortion. It bans abortion in nearly all instances and allows prosecutors to charge physicians who violate it. There is an exception to prevent the mother’s death, but not in any other circumstance. 

The Biden administration sued, arguing the ban violated the federal Emergency Medical Treatment and Labor Act (EMTALA), which it said protects providers who perform lifesaving or health-saving abortion services in emergencies.

In an unsigned order Friday, the court granted a request by Idaho to overrule an injunction pausing the law issued by a federal appeals court.

The justices said they would take up the case on an expedited basis, meaning oral arguments will happen in April. Until then, the full law can take effect. 

Greer Donley, a professor at the University of Pittsburgh Law School, said the court’s decision will have an immediate impact only on patients in Idaho. And even then, medical exceptions are rare. 

“Even though I personally view, and I think most of Americans view this medical emergency question to be of the most importance in some sense, it also affects the smallest number of abortion patients,” Donley said.  

Still, a ruling in favor of the state would also eliminate a potential federal challenge to abortion bans in other states. Donley argued it would have a symbolic effect too because it would show a disregard for the health of anyone who is pregnant or may become pregnant. 

Mary Ziegler, an abortion historian and professor of law at the University of California, Davis, said the two cases this term are just the start of litigating abortion law through the courts.

“The federal courts are maybe a more sympathetic forum for people who want to restrict abortion than ballot initiatives or elections,” Ziegler said.  

“So they’re going to continue asking the Supreme Court to take these cases, and the fact that the court took these cases up so quickly, including with the EMTALA case in a scenario where they really didn’t need to step in, I think that tells you we’re going to see much more of the same in the years to come.”