Getting out of the fray over abortion is proving easier said than done for the U.S. Supreme Court.
The recent showdown over the abortion pill mifepristone offers a glimpse of the legal fights likely to land at the court in the coming years. Brewing debates over travel restrictions, emergency hospital procedures and mail delivery of drugs threaten to make abortion a recurring part of the court’s docket.
“There’s just no chance the court is going to get out of this for good, and I’m not entirely convinced they want to,” said Mary Ziegler, a University of California, Davis, law professor who wrote a book on the history of US abortion law.
That’s not exactly what the court promised when it overturned the landmark Roe v. Wade ruling 10 months ago in Dobbs v. Jackson. In his majority opinion, Justice Samuel Alito said the ruling would “return the issue of abortion to the people’s elected representatives.”
In his concurring opinion, Justice Brett Kavanaugh said the court “must be scrupulously neutral” and not “decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States.”
Anti-abortion groups are already testing the court’s resolve. In challenging the Food and Drug Administration’s 2000 approval of mifepristone — a drug now used in more than half the nation’s abortions — they filed their case in a Texas federal court where they were guaranteed to get a judge with a history of abortion opposition.
U.S. District Judge Matthew Kacsmaryk, a Donald Trump appointee, then suspended the drug’s approval and gave President Joe Biden’s administration a week to get a pause from a higher court. The Supreme Court did that Friday over two dissents, keeping mifepristone on the market and fully available while the government and drugmaker Danco Laboratories LLC press appeals.
With the 5th U.S. Circuit Court of Appeals planning to hear those appeals on an expedited schedule — arguments are set for May 17 — the case could be back at the Supreme Court in a matter of months.
“The issue seems bound to find its way back to the court, and likely soon,” said Steven Aden, chief legal officer at Americans United for Life, which supports the challenge.
The Texas lawsuit, which contends the FDA gave short shrift to safety concerns, ultimately could fail on procedural grounds. The administration says the suing groups and doctors aren’t suffering the type of injury that gives them legal standing to sue. And a panel of the 5th Circuit, the nation’s most conservative appeals court, has said it’s probably too late to challenge the FDA’s 2000 approval decision.
But even if that suit founders, one issue it raises could have ongoing resonance. Abortion opponents say an 1873 federal law known as the Comstock Act prohibits the mailing of drugs to end pregnancy, even in states where they are fully legal. The Biden administration contends the law has long been understood as applying only to drugs that would be used for illegal abortions.
When it partially blocked Kacsmaryk’s order earlier this month, the 5th Circuit panel suggested it read the Comstock Act as precluding the mailing of mifepristone.
“I could imagine the 5th Circuit finding a way to get rid of this on something like standing or timeliness with a long love letter to the Comstock Act, something essentially teeing up for anti-abortion lawyers in the future that the federal courts are still open for business but maybe sacrificing this case,” said Ziegler, who backs abortion rights.
Additional fodder could come from restrictions imposed by states, including a new Idaho law that makes it a criminal offense to help a minor get an abortion in another state. Kavanaugh suggested in his Dobbs opinion he might vote to invalidate that type of provision as violating the constitutional right to travel, but legal questions remain.
In another case from Texas, a different federal judge has blocked Biden administration guidance that tells hospitals they may have to provide abortions under a federal emergency care law. A federal judge in Idaho has reached a conflicting conclusion, using the federal law to block part of the state’s near-total abortion ban. Both cases are now on appeal.
Ultimately, the Supreme Court may be confronted with more far-reaching questions, including the prospect of a state ban that doesn’t provide exceptions when a mother’s life or health is at risk. Abortion opponents could also ask the justices to declare that the Constitution protects fetal rights, though the court so far hasn’t shown any appetite for that question.
“The majority’s sweeping language in the Dobbs decision seemed calculated to retire the court from the abortion wars,” Aden said. “But the enormity of the Texas chemical abortion case for women’s health and the struggle over abortion appear destined to pull them out right back into it.”
