On the surface, abortion rights have 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 threw out a case over Idaho’s strict abortion ban that would have allowed emergency centers in the state to perform the procedure when the patient’s health is at risk.
But the two decisions were too technical to be ephemeral. They seemed designed for avoidance and delay, to kick a volatile issue down the road — or at least after Election Day.
Some abortion rights advocates called the rulings fiery victories, ones they feared would set the stage for more restrictions, either by the courts or by a second Trump administration.
In Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overturned Roe v. Wade, the Supreme Court showed that it was seeking 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 have been broadly consistent with that sentiment, though Justice Alito himself was willing 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 the case presents. This is sad.”
The majority took a different view, but its tax avoidance strategy 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 follow, is that the fight over abortion is not being left to the states,” he said. “The executive branch and the Supreme Court will still have a lot to 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. This means, he said, that the Supreme Court will not be able to sidestep difficult issues in the long run.
“In both of these cases,” he said of this month’s rulings, “the court avoided addressing the quagmire created by overturning Roe v. Wade. Without a national right to abortion care, contentious cases like these will come back to court again and again. The court will not be able to bypass the self-imposed mess forever.”
He added: “No side in this debate is going to stop fighting for the outcome it prefers — a national rule that applies everywhere. So there’s no doubt that we’ll see more and more cases like this blowing up in the Supreme Court in the coming years.”
The two decisions solved almost nothing.
The first simply said that the specific doctors and groups challenging the Food and Drug Administration’s approval of an abortion pill had not suffered the kind of injury that gave them the right to sue. The court did not rule on whether the agency’s action was legal.
Other challengers, notably three states that have already intervened in the case in the lower court — Idaho, Kansas and Missouri — will continue to fight. Their challenge could reach the Supreme Court fairly quickly.
The Idaho case was even more zero-sum. The court, which had taken the unusual step of agreeing to review a trial judge’s decision before an appeals court acted, thought better of getting involved at such an early stage
The court dismissed the case as “unpredictably 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 may hear an appeal involving a broadly similar Texas law that has been upheld by the Fifth Circuit. The Biden administration has already filed for a review of that decision.
“Both decisions strike me as resounding victories for the Biden administration,” Professor Ziegler said. In the abortion pill case, Food and Drug Administration v. Alliance for Hippocratic Medicine, said the court interpreted conscience protections for doctors who oppose abortion much more broadly than in previous decisions.
In the emergency abortion case, Moyle v. United States, Professor Ziegler said, Justice Amy Coney Barrett “similarly alluded to the importance of protecting conscience and raised suspicions about mental health justifications for abortion — both of which could be consequential in the future. “
Rachel Rebouché, dean of Temple University’s Beasley School of Law, said “these decisions cannot be described as clear victories for abortion advocates.”
“The issues at the heart of both cases are certain to come before the court again,” he said. “The court did not rule on the merits in either decision, and there are already cases to test the legality of mail-in medication abortion and uphold state abortion laws that do not provide an exception to prevent serious injury or threat to health.” .
The upcoming election may have played a role in the Supreme Court’s failure to act. After all, the Dobbs decision, handed down months before the 2022 midterm elections, was a political windfall for Democrats.
Greer Donley, a law professor at the University of Pittsburgh, said the court’s conservative majority may have wanted to avoid “an unpopular value-based abortion decision in an election year.”
Professor Ziegler said she was not sure how the election was accounted for in the court’s calculations.
“It would be unusual for the court to issue two major decisions in an election year, and it’s fair to assume that the court’s more institutional judges were looking for a way to avoid that outcome,” he said. “At the same time, there were real reasons to defer judgment on the merits in both cases.”
He added: “That means there’s not a smoking gun to show that this is an election year person – after all, why get these cases in an election year in the first place? — but it seems very likely that the upcoming election has made it even more attractive to kick the can down the road.”
If Mr. Trump wins, much of what was discussed in the two cases could be resolved by executive action. His administration could withdraw the emergency care guidelines in the Idaho and Texas cases and could interpret an old law, the Comstock Act, to try to ban mail-in abortion pills.
But whatever is said about the direction of the Supreme Court’s abortion jurisprudence, Professor Cohen said, it is important not to forget who won and who lost in the two recent decisions.
“The anti-abortion movement made big changes with these cases and lost in both,” Professor Cohen said. “They couldn’t stop the abortion pill, nor could they stop federal law from overriding state abortion bans. That may change in the future, but right now, he’s 0-for-2 after Dobbs.”
