Post-Roe tectonic shifts: Abortion could be headed back to the Supreme Court

Throughout its history, the Supreme Court has overturned long-standing precedents, as it did recently in Dobbs v. Jackson Women’s Health Organization. Such changes are like the shifting of tectonic plates, triggering earthquakes and volcanic eruptions in the legal lithosphere. In the law, the adjustment can take years, as collateral doctrines and applications shake out along new fault lines. 

That process has begun with new litigation in the post-Roe period bringing these conflicts into sharper focus, including a fight over who ultimately controls the doctors and health providers in the United States.

As intended by the court, much of the debate over abortion will now fall on citizens to decide in the democratic process. However, there also will be legal challenges — and, roughly a month after the Dobbs ruling, the legal “ring of fire” is taking shape with a major eruption in Texas this past week.

Texas is suing the Biden administration over new guidance issued after the Dobbs decision. President Biden declared that the “only way we can secure a woman’s right to choose … is for Congress to restore the protections of Roe v. Wade as federal law.” He then announced unilateral actions designed to blunt the decision’s impact. That mandate was carried out by Health and Human Services Secretary Xavier Becerra, who stated that “we have no right to do ‘mild.’ And so we’re going to be aggressive and go all the way.”

The “aggressive” move included requiring doctors and hospitals to continue to supply abortion services in emergency situations under the Emergency Medical Treatment and Active Labor Act (EMTALA). The Act was created to prevent “patient dumping,” by which hospitals would turn away patients who could not pay for treatment. It does not mention abortion.  

The change only deals with a provision on “emergency medical care” and “stabilizing treatments” concerning abortion, though the former category can cover any “medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain)” that could “reasonably be expected to result in — (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily function or part.” 

Putting aside the possible scope of that provision, the Texas lawsuit represents the first major test of who controls doctors and health providers in a given state.

The Biden administration declared that when “a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

That last line may give Texas and other states the strongest claims for legal standing to challenge the law. It also raises a possible conflict with the law itself, which specifies that EMTALA does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of [EMTALA].” 

That sets up a new challenge over whether the Biden administration has exceeded its authority after the court struck down climate-control regulations. The administration is not only accused of exceeding its authority again but also failing to comply with federal notice and comment requirements under the Administrative Procedure Act (APA).

The administration may have undermined its own case by heralding the new policy as part of an aggressive campaign. While dismissing “mild” steps outside of the court, the administration will argue in court that this is part of a preexisting policy — not a major new change requiring congressional approval or notice and comment procedures. Yet Biden’s and Becerra’s words already are being cited in the litigation by the challengers. 

The most significant fight brewing among the states is referenced in a different part of the guidelines. The Biden administration warned retail pharmacies that they must fill prescriptions for pills that can induce abortion under federal law; a majority of abortions are performed at home with the use of those pills. 

That could set up a challenge with sweeping implications. Doctors are subject to both federal and state laws, including state licensing rules. In 2000, the Food and Drug Administration approved the abortion medication Mifepristone and, six years later, approved the drug for use in combination with another widely used drug, Misoprostol. By 2018, more than 3.7 million women had used the medications to end early pregnancies.

Soon after the Dobbs decision, some of us flagged the availability of these pills as the most significant issue going forward. Since most women will likely live in states with available abortion services, the pill could be used by women in states with abortion bans. Indeed, Attorney General Merrick Garland moved quickly after the opinion to declare that “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

Michigan Gov. Gretchen Whitmer (D) has called upon President Biden to make the pills available over-the-counter. 

The problem is that states could prohibit doctors from prescribing the pills and ban their import. For example, South Dakota Gov. Kristi Noem (R) announced that she will seek a ban on mail-order abortion pills. Conversely, the federal government may rely on telemedicine to allow women to obtain prescriptions. 

Since states generally do not want to prosecute pregnant women, they will focus on state licensing and practice laws for doctors. That will pit the federal interstate authority over medications against the state authority over doctors. The Biden administration again will be in largely uncharted territory; just as the court rejected sweeping agency action in the area of climate control, it could do the same in the area of abortion rights.

This is just part of the litigation movement on the federal level, in which pro-choice advocates will try to reestablish federal protection for abortion. 

On the state level, pro-life and pro-choice groups will flip in orientation. Pro-life attorneys general, who spent 50 years on the offensive, now must play defense to hold the ground they gained in Dobbs. 

On the pro-choice side, some still seek Biden’s “Hail Mary” approach to federalized abortion. This week, the House passed the Women’s Health Protection Act of 2022 to codify the decision, but the Senate does not appear likely to pass the law — and, if it did, it would be challenged in light of Dobbs, sending the question back to the states. (The House also passed the Ensuring Access to Abortion Act to protect a patient’s right to travel for legal abortions, a right already protected under the Constitution and not endangered by the Dobbs decision.)

On offense, pro-choice advocates may be left with pursuing the prior pro-life strategy of chipping away at the edges of these laws.

One thing is clear: In announcing his “aggressive” measures, Secretary Becerra insisted that the country “can no longer trust” the Supreme Court. Yet, in this first round of major litigation, that is precisely where we seem to be heading.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.