WASHINGTON — The Supreme Court is set to rule this month on two major abortion cases with significant national implications as the justices revisit the issue for the first time since the case was overturned Roe v. Wade.
The 2022 decision to end abortion rights sent shockwaves across the country, leading to a new wave of state restrictions on abortion and encouraging anti-abortion activists to seek other means of restrict this practice.
In the most closely watched case, the court is considering whether to impose new restrictions on mifepristone, a commonly used abortion pill, including placing new restrictions on access by mail.
In the other case, which has received less attention but could have far-reaching consequences, the justices are considering whether a near-total ban on abortion in Idaho conflicts with a federal law requiring medical care. emergency for patients, including pregnant women.
Rabia Muqaddam, an attorney at the Center for Reproductive Rights, which supports abortion rights, said the 2022 decision in Dobbs v. The Jackson Women’s Health Organization “started a chain reaction that we’re seeing in all kinds of ways,” including in the two cases currently before the court.
Theories that were previously considered “fringe” are now “mainstream enough to be taken to the Supreme Court,” she added.
The new cases show that the Court’s stated goal of no longer having to decide what conservative Justice Brett Kavanaugh called “difficult moral and political questions” was easier said than done. So the upcoming rulings will provide further evidence of the extent to which the court, which has a 6-3 conservative majority, is willing to go to restrict access to abortion.
In the mifepristone case, the court is considering whether to impose new restrictions on the availability of the pills, including access by mail. Such a move would significantly reduce women’s ability to obtain the pills, particularly in states that have imposed new abortion restrictions.
The legal question in the Idaho case is whether a federal law requiring stabilizing treatment for female patients in emergency rooms trumps state restrictions in certain circumstances when doctors believe that an abortion is necessary to protect the health of a pregnant woman.
Jim Campbell, chief legal counsel for Alliance Defending Freedom, the conservative Christian legal group that represents anti-abortion interests in both cases, said the legal problems in each reflect the Biden administration’s overreach in response to the overturning of Roe.
“These are two cases where the federal government is doing things, directly or indirectly, to interfere with state pro-life laws,” he added.
Based on oral arguments earlier this year, it seems likely that anti-abortion groups will lose in the mifepristone case, leaving the status quo unchanged. That means the Idaho case could have a greater practical impact if the court supports the state, which seems possible based on the questions asked by the justices.
Decisions are expected by the end of the month, when the court traditionally finishes its nine-month term that begins in October. The court will also issue a series of other rulings on hot-button issues, including former President Donald Trump’s request for immunity from prosecution in his election interference case.
The next decision day is Thursday.
The mifepristone case gained national attention last year when a federal judge in Texas issued a sweeping ruling completely invalidating the Food and Drug Administration’s approval of the pill, calling its availability into question.
The Supreme Court quickly stayed this decision, and the case lost some of its significance as it went through the appeals process.
The FDA’s approval of the drug is not before the court, but only subsequent decisions that made it easier to access, including the finding that made the drug available by mail.
During oral arguments, the justices questioned whether the group of anti-abortion doctors who filed the suit had legal status simply because they opposed abortion and, in certain hypothetical situations, might be forced to provide emergency care for women suffering from complications resulting from medication. the pill.
Idaho’s case hinges on whether Idaho’s abortion ban conflicts with a federal law called the Emergency Medical Treatment and Labor Act, or EMTALA.
The Biden administration says that’s the case because Idaho’s ban includes only a narrow exception to save a pregnant woman’s life. The administration says EMTALA requires more than that, meaning doctors should be able to perform abortions in more emergency situations in which a woman’s health is at risk, even if she is not at imminent risk of death.
Idaho officials downplay the tension between the two laws, saying federal law does not override a state’s own laws governing health care.
In January, the Supreme Court allowed Idaho to enforce its law, prompting the state court to report that St. Luke’s Health System was forced to airlift patients out of the state. state to allow abortions to take place, lest its doctors be prosecuted.
A broad ruling in favor of Idaho would affect at least a handful of states that have abortion bans similar to Idaho’s and do not have a health care exception. Abortion is effectively banned in 14 states, but laws differ on the rare cases when an abortion might be permitted to protect the health of the pregnant woman.
While abortion rights advocates now hope to win the mifepristone lawsuit on the status question, they fear a loss in the Idaho dispute and insist such an outcome should not be considered as a sort of Supreme Court compromise.
A ruling in favor of Idaho officials “would be a new low for the Supreme Court, whether or not it answers a technical legal question in a different case that also concerns abortion,” Alexa Kolbi-Molinas said , a lawyer at the American Civil Liberties Union, who supports abortion rights defenders in both cases.
She pointed out that if the anti-abortion side lost in the mifepristone case on the question of standing, the case could still come back to court with different plaintiffs who might have a better argument for standing. to act, which could lead to a subsequent decision on the merits. of their demands.
“Even if we live to fight another day…we know that our adversaries in this matter are not finished,” Kolbi-Molinas added.
ADF’s Campbell said he would evaluate each case separately if the court were to rule in favor of his side in the EMTALA case and against it when it comes to the FDA’s regulations on mifepristone.
“I would consider EMTALA’s decision a significant victory and I would consider the FDA’s decision unfortunate,” he added.