On the surface, abortion rights have had good results at the Supreme Court this period. Two weeks ago the judges were unanimous let an abortion pill remain widely available. Court on Thursday a case dismissed about Idaho’s strict abortion ban, which resulted in the state’s emergency rooms ordering the procedure when the patient’s health was at risk.
But the two statements were so technical as to be fleeting. They seemed designed to dodge and delay, to push a fickle issue forward — or at least past Election Day.
Some abortion rights advocates called the rulings pyrrhic victories. They feared they would pave the way for even more restrictions, either from the courts or from a second Trump administration.
In Dobbs vs. Jackson Women’s Health Organizationthe 2022 decision that Roe vs. Wadethe Supreme Court signaled that it wanted to get out of the abortion business. “The power 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, although Justice Alito himself was eager to hear Thursday’s case. “Apparently,” he wrote, “the court has simply lost the will to decide the easy but emotional and highly politicized question the case raises. That is unfortunate.”
The majority had a different opinion, but its avoidance strategy cannot hold, the spokesperson said Maria Zieglerprofessor of law at the University of California at Davis.
“What is clear, both for this term and for the term ahead, is that the fight against abortion is not going to be left to the states,” she said. “The executive branch and the Supreme Court will still have their say.”
David S. Cohena law professor at Drexel University, said the end of Roe marked the beginning of a war in which each side seeks total victory. That means, he said, that in the long run the Supreme Court will not be able to sidestep hard questions.
“In both cases,” he said of this month’s decisions, “the court avoided addressing the quagmire created by overturning Roe v. Wade. Without a national right to abortion care, these types of contentious cases will continue to come before the court. The court will not be able to permanently avoid the mess it has created.”
He added: “Neither side in this debate will stop fighting for their desired outcome — a national rule that applies everywhere. So there is no doubt that we will see more and more cases like this before the Supreme Court in the coming years emerge.”
The two rulings have solved virtually nothing.
The first said only that the specific doctors and groups that challenged the Food and Drug Administration’s approval of an abortion pill had not suffered the kind of harm that would have given 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 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 non-event. The court, which had taken the unusual step of agreeing to review a trial judge’s ruling before an appeal court had acted, thought it better to become involved at such an early stage
The court dismissed the case as “imprudently granted,” the legal equivalent of “never mind.” After the appeals court, the U.S. Court of Appeals for the Ninth Circuit, issues its ruling, the Supreme Court can return to the case.
Or it could hear an appeal over a broadly similar Texas law that has been backed by the Fifth Circuit. The Biden administration has already submitted an application a request for review of that statement.
“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 vs. Alliance for Hippocratic MedicineShe said the court interpreted conscience protections for doctors who oppose abortion much more broadly than in previous rulings.
In the case of emergency abortions Moyle v United StatesProfessor Ziegler said Judge Amy Coney Barrett “also alluded to the importance of protecting conscience and expressed distrust of mental health justifications for abortion – both of which could have future consequences.”
Rachel Rebouchédean of Temple University’s Beasley School of Law, said that “these decisions cannot be described as pure victories for abortion advocates.”
“The issues at the heart of both cases will certainly come before the court again,” she said. “The court has not ruled on the merits in either decision, and there are already cases pending to test the legality of medication abortion and to uphold state abortion laws that do not make an exception for preventing serious injury or threat to health.”
The upcoming election may have played a role in the Supreme Court’s failure to take action. After all, the Dobbs ruling, which came months before the 2022 midterm elections, was a political windfall for Democrats.
Greer Donleya law professor at the University of Pittsburgh, said the court’s conservative majority might have wanted to avoid “an unpopular, merit-based abortion decision in an election year.”
Professor Ziegler said she was unsure how the election factored into the court’s calculations.
“It would have been extraordinary for the court to have made two major decisions in an election year, and it’s reasonable to assume that the court’s most institutionalist justices would have been looking for a way to avoid that outcome,” she said. “At the same time, there were real reasons to delay ruling on the merits in both cases.”
She added: “That means there’s no smoking gun to suggest this is an election year reversal – why would we take these cases in an election year at all? – but it seems very likely that the upcoming elections have made it even more attractive to set aside the tin can.”
If Mr. Trump wins, much of what was at issue in the two cases could be resolved by executive action. His administration could repeal the emergency medical treatment guidelines in the Idaho and Texas cases and interpret an old law, the Comstock Act, to try to ban the mailing of abortion pills.
But 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 anti-abortion movement made huge strides in these cases and missed in both,” Professor Cohen said. “They couldn’t stop abortion pills, nor could they prevent federal law from trumping state abortion bans. That may change in the future, but right now they’re 0 for 2 post-Dobbs.”
