Tuesday, July 16, 2024

Supreme Court’s Abortion Rulings May Set the Stage for More Restrictions

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Superficially, abortion rights had a good run at the Supreme Court this term. Two weeks ago, the justices unanimously let an abortion pill remain widely available. On Thursday, the court dismissed a case about Idaho’s strict abortion ban, which had the effect of letting emergency rooms in the state perform the procedure when the patient’s health is at risk.

But the two rulings were so technical as to be ephemeral. They seemed designed for avoidance and delay, for kicking a volatile subject down the road — or at least past Election Day.

Some supporters of abortion rights called the rulings Pyrrhic victories, ones they feared would set the stage for more restrictions, whether from the courts or from 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 sought 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 were generally consistent with that sentiment, though Justice Alito himself was eager to address Thursday’s case. “Apparently,” he wrote, “the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”

The majority took a different view, but its strategy of evasion cannot last, said Mary Ziegler, a law professor at the University of California, Davis.

“What is clear, both in this term and in what is likely to come next, is that the abortion struggle is not being left to the states,” she said. “The executive branch and the Supreme Court are still very much going 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, that the Supreme Court will not be able to duck hard issues in the long term.

“In both of these cases,” he said of this month’s decisions, “the court avoided tackling the morass created by overturning Roe v. Wade. Without a national right to abortion care, contentious cases like these are going to come back to the court again and again. The court won’t be able to sidestep its self-imposed mess forever.”

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

The two rulings resolved almost nothing.

The first said merely that the particular doctors and groups challenging the Food and Drug Administration’s approval of an abortion pill had not suffered the sort of injury that gave them standing to sue. The court did not rule on whether the agency’s action was lawful.

Other challengers, notably three states that have already intervened in the case in the trial court — 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 nonevent. The court, which had taken the unusual step of agreeing to review a trial judge’s ruling before an appeals court had acted, thought better of getting involved at such an early stage

The court dismissed the case as “improvidently granted,” the judicial equivalent of saying “never mind.” After the appeals court, the U.S. Court of Appeals for the Ninth Circuit, rules, the Supreme Court may return to the case.

Or it might hear an appeal involving a broadly similar Texas law, which has been sustained by the Fifth Circuit. The Biden administration has already filed a petition seeking review of that ruling.

“Both decisions strike me as Pyrrhic victories for the Biden administration,” Professor Ziegler said. In the abortion-pill case, Food and Drug Administration v. Alliance for Hippocratic Medicine, she said, the court interpreted conscience protections for doctors opposed to abortion far more broadly than it had in earlier decisions.

In the case on emergency abortions, Moyle v. United States, Professor Ziegler said, Justice Amy Coney Barrett “likewise hinted at the importance of conscience protections and expressed suspicion of mental health justifications for abortion — both of which could be consequential in the future.”

Rachel Rebouché, dean of Temple University Beasley School of Law, said that “these decisions can’t be described as pure wins for abortion supporters.”

“The issues at the heart of both cases are sure to come before the court again,” she said. “The court didn’t rule on the merits in either decision, and there are already cases in the pipeline to test the legality of mailed medication abortion and to uphold state abortion laws that make no exception for avoiding serious injury or threat to health.”

The coming election may have played a role in the Supreme Court’s failures to act. After all, the Dobbs decision, issued months before the 2022 midterm elections, was a political windfall for Democrats.

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

Professor Ziegler said she was not sure how the election figured in the court’s calculations.

“It would have been extraordinary for the court to issue two major rulings in an election year, and it’s fair to assume that the court’s most institutionalist justices were looking for a way to avoid that outcome,” she said. “At the same time, there were real reasons to postpone ruling on the merits in either case.”

She added: “That means there isn’t a smoking gun pointing to this being an election-year about-face — after all, why take these cases in an election year in the first place? — but it seems quite likely that the upcoming election made it even more attractive to kick the can down the road.”

If Mr. Trump wins, much of what was at issue in the two cases may be resolved by executive action. His administration could withdraw the guidance on emergency room care 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.

Still, whatever may be said 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 antiabortion movement took big swings with these cases and missed in both,” Professor Cohen said. “They couldn’t stop abortion pills, nor could they stop federal law from trumping a state abortion ban. That may change in the future, but right now, they’re 0 for 2 post-Dobbs.”

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