In a trio of decisions issued this month, the right-leaning Supreme Court — including a handful of the justices who joined the disastrous ruling in Dobbs v. Jackson Women’s Health Organization — gave American women some half-hearted wins.
Dobbs reversed Roe v. Wade, a decades-old precedent that had established a right to abortion. For the first time in its history, a 5-4 majority of the court wiped out an individual constitutional right, enabling state legislatures to legally force women to carry fetuses to term, including unviable ones.
Fourteen states have since enacted draconian bans on abortion, with three more drawing the line at six weeks from fertilization, when most women don’t even know they are pregnant. Since Texas enacted its near-total abortion ban post-Dobbs, infant deaths have increased 13 percent (compared with a 2 percent increase across the nation as a whole), because women in Texas must now give birth to fetuses that never had a realistic chance of survival.
Dobbs also opened up a Pandora’s box of nightmarish policy conundrums that few anticipated when it became the law of the land. Far-right groups in a growing number of states, such as Kansas and Oklahoma, are making headway in their push for laws that equate abortion with murder.
There is now a nationwide debate over whether in vitro fertilization should be banned (on the theory that embryos in freezers are babies too), and litigants have gained traction in lawsuits over the Food and Drug Administration’s longstanding authorization of a drug used in abortions, and over the medical profession’s ability to provide abortions to women who could face grave physical harm or even death if forced to continue their pregnancies.
Such cruelty and chaos was entirely avoidable. It’s now up to the Supreme Court to start cleaning up the mess it made.
Thankfully, a modicum of reason has made its way into a contingent of the far-right majority. In the FDA case involving the drug, mifepristone, and in a case that pitted Idaho’s abortion law against a federal law mandating that emergency rooms provide emergency care, the court declined to dig further into the anti-women crusade that Dobbs (perhaps inadvertently) unleashed.
In FDA v. Alliance for Hippocratic Medicine, Justice Brett Kavanaugh wrote a textbook opinion for the majority on Article III standing law, which is designed to keep judges out of the business of lawmaking. Article III of the Constitution confines federal judges’ job description to deciding “cases,” which the court has long interpreted to mean that there needs to be a uniquely injured plaintiff and not a bystander who wants the court to tell the other branches how to do their jobs.
The plaintiffs in the FDA case were a group of doctors and medical associations with ideological objections to using mifepristone for pregnancy terminations. Kavanaugh ruled for a unanimous court that they need to go to the FDA or Congress for relief.
That’s not to say that the underlying challenge to pregnant women’s access to the drug is over. If a “better” plaintiff comes along — which right-wing operatives are undoubtedly working to find — the justices could take the next case and vote to ban mifepristone later.
On Thursday, after a bizarre “leak” the afternoon before, the court issued another ruling involving the rights of women, which took back its hasty decision to agree to hear a dispute over whether Idaho’s abortion law or the federal Emergency Medical Treatment and Labor Act governs in Idaho.
Moyle v. United States came to the Supreme Court on an emergency petition by Idaho, and the court granted what is known as “certiorari before judgment” — meaning it agreed to leapfrog over the lower appeals court and hear the case from the lowest federal court immediately, rather than waiting for it to percolate through the appeals process.
The Emergency Medical Treatment and Labor Act was enacted in 1986 to halt hospital emergency rooms from denying low-income patients critical care merely because they could not afford it. Under the statute, when someone arrives at a hospital with an “emergency medical condition,” meaning it involves serious jeopardy to their health, the hospital must “stabilize” it.
Idaho, however, allows abortions only when “necessary to prevent” a pregnant woman’s “death.” The federal government sued Idaho to make clear that the Emergency Medical Treatment and Labor Act governs, and to enforce the Constitution’s Supremacy Clause, which mandates that federal law prevails when, as in this case, there’s a conflict with state law.
A lower court issued an injunction making clear that women in Idaho can get emergency abortions (doctors were worried that the state would come after them for complying with the federal law). On Idaho’s emergency appeal, the Supreme Court lifted the lower court’s injunction, allowing Idaho’s abortion ban to trump federal law. As of Thursday, it had put that injunction back in place. So, for now, pregnant women in Idaho can get the emergency care their doctors deem necessary, as mandated by federal law.
To justify its about-face on certiorari, Justice Amy Coney Barrett wrote a concurring opinion, which Chief Justice John Roberts and Kavanaugh joined, explaining that oral argument had revealed to her that a number of factual and legal issues remained open that the lower courts should address first. They mainly concern the medical line between an emergency abortion that’s needed to avoid imminent death and an emergency abortion that’s needed to prevent extremely severe conditions. Many people — including Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, who joined Kagan’s concurring opinion — would agree that these kinds of calls are for doctors and their affected patients to make, not lawyers and judges.
But the Supreme Court wants to hear from more lawyers and judges. Once it does, it might side with Idaho down the line. So despite this reprieve, women and physicians cannot rest easy that their personal and professional judgment matters in states like Idaho anytime soon.
Justice Samuel Alito filed a dissenting opinion that Justices Clarence Thomas and Neil Gorsuch joined; they would have taken the case and ruled for Idaho, on the theory that the doctors’ paramount obligation is to save a fetus — not the mother’s health — even under federal law.
The third “win” for women was U.S. v. Rahimi, which upheld another commonsense federal law — this one banning domestic abusers from owning guns.
Given how bad things have gotten since Dobbs, we’ll take whatever we can get.
Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September.