In the Supreme Court’s notorious 2022 Dobbs decision, the 6-3 ultra-conservative majority took away our constitutional right to abortion care. Now the Court is considering two cases that may restrict access to abortion even more. One case may limit access to a widely used method of medication abortion. The other may limit access to urgently needed abortion care during medical emergencies.
What is the mifepristone case?
Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine involves mifepristone, one of two medications used in the most common method for abortion in the United States. Mifepristone is safe and effective. The FDA first approved its use in 2000. Since 2016, FDA has expanded its availability, based on scientific research into usage of the medicine since 2000. As a result, mifepristone can now be safely prescribed by a larger category of qualified medical professionals, obtained through the mail, and taken safely at home.
How did the mifepristone case begin?
After Dobbs, conservatives targeted the availability of medication abortion. They created an organization called the Alliance For Hippocratic Medicine to manufacture a lawsuit against the FDA. They argued against all the evidence to the contrary that mifepristone is dangerous. According to the group, the FDA’s approvals were not supported by the evidence as required by a federal law called the Administrative Procedure Act (the law that governs most agency regulations).
The anti-abortion forces made sure to get their case before a judge who would ignore science, facts, and the law: So they incorporated themselves in Amarillo, Texas, which has only one federal judge: Matthew Kacsmaryk. Before his confirmation in 2019, Kacsmaryk had been a religious right activist opposed to abortion rights. Predictably, he ruled against the FDA. The case was appealed to the extremely conservative Fifth Circuit, which upheld several of the restrictions Kacsmaryk had imposed.
The Supreme Court stayed the lower court order so mifepristone would remain fully available while the case was in litigation. This was over the objections of Justices Thomas and Alito.
What is “standing” and how does it affect this case?
The lawsuit should have been dismissed even before a judge considered the merits. That’s because of a constitutional requirement called standing: In order to sue in a federal court, you have to show some kind of injury. You can’t go to federal court just because you disagree with something. You actually have to have an injury that the court can remedy.
But the members of the Alliance for Hippocratic Medicine have never taken mifepristone or prescribed it to their patients. They are simply doctors who personally oppose abortion. Even so, they claim an injury: Someday, one of them might find themselves in a situation where they have to provide abortion-related care to a patient experiencing a complication caused by the medication. This is a highly unlikely scenario – especially since federal law lets doctors opposed to abortion decline to give abortion care.
Did the justices discuss standing at oral arguments?
Yes. Based on the oral arguments, many observers expect the Court to order the case dismissed on the basis of standing. This would allow mifepristone to remain available. Even some of the conservative justices seemed skeptical that the Alliance for Hippocratic Medicine had standing to file its lawsuit.
Progressive Justice Ketanji Brown Jackson discussed the “significant mismatch” between what the doctors claim their injury is and the remedy they are demanding. If the injury is that they might be forced to provide abortion care they morally object to, then the “common-sense remedy” would be to let them not provide it (which is already their right under existing law). Instead, as Jackson noted, the doctors want the courts to prevent anyone from having access to mifepristone. How could they possibly be entitled to that, she asked.
What is the Comstock Act that two of the arch-conservative justices raised?
Apart from the drug safety issue, two of the arch-conservatives seemed interested in reviving an obsolete 19th-century law called the Comstock Act to prevent mifepristone from being delivered in the mail. As the Supreme Court noted in the 1980s, the Comstock Act was named after a prominent anti-vice crusader who believed that anything relating to sex was obscene. But the Fifth Circuit specifically declined to address the Comstock Act, and no other justices mentioned it during oral arguments. However, we can expect this to be a major issue in a future case.
What is the emergency abortion care case?
Moyle v. United States is about far-right efforts to deny abortion care even in emergency situations when it’s needed to protect a patient’s health.
In 1986, Congress passed the Emergency Medical Treatment and Labor Act (EMTALA). Congress acted because hospitals were turning away people who needed emergency medical care. EMTALA requires hospitals receiving Medicare (which most do) to provide stabilizing medical care when there is an emergency.
Sometimes, when someone who is pregnant has severe complications, the safest way to protect their health is to provide an abortion. But anti-abortion forces are trying to prevent that care from being given. They claim that EMTALA does not require emergency abortion care. And in states that have outlawed abortion thanks to Dobbs, providing that care would be illegal.
How did the Biden administration protect emergency abortion access?
The case arose in Idaho, where it is illegal to provide abortion care except to save the patient’s life. If an abortion is needed to protect a mother from serious health consequences short of death, Idaho law prohibits it. So the Biden administration sued the state, on the basis that EMTALA supersedes Idaho’s law.
A federal district court ordered Idaho not to enforce its criminal law pending final resolution of the issue in litigation. The full Ninth Circuit agreed. But the Supreme Court stepped in and allowed Idaho to enforce its anti-abortion laws while the case was pending.
What happened at oral arguments?
During oral arguments, the justices appeared divided.
Justices Sonia Sotomayor and Elena Kagan were especially focused on the impact that denial of care has on patients, including the loss of organs and the inability to become pregnant again. They and Justice Jackson seemed to believe that EMTALA preempts Idaho’s law.
Some of the conservative justices seemed concerned about interpreting a federal spending program (like Medicare) to preempt a state criminal law. For instance, Justice Barrett said it would be "odd" to let a private entity like a hospital “get out" of a state law by making an agreement with the federal government to take Medicare funds.
Perhaps the most extreme position came from the author of Dobbs. Justice Alito suggested an interpretation of EMTALA that would turn it upside down. One of EMTALA’s purposes is to ensure that hospitals provide emergency care during pregnancies. That includes situations where care is needed to protect the health of the mother or the fetus. But Alito argued that because the statute refers to the fetus as an “unborn child,” it must be read to prohibit abortion care at any time, even when the health of the mother would be seriously compromised.
Conclusion
Decisions in both these cases are expected by late June or early July, when the Court’s current term ends.
In the short run, it will be up to the justices who overturned Roe v. Wade to decide whether to continue to restrict our access to abortion care. But in the long run, it will be up to the American people to reform the courts and ensure the appointment of justices and judges who will respect our fundamental constitutional rights.