Two years after deciding the case that overturned a constitutional right to abortion, the Supreme Court heard two cases on abortion law this term. The first involved a challenge to the U.S. Food and Drug Administration’s approval and regulation of mifepristone, the first drug in a medication abortion. The second concerned the intersection of Idaho’s state abortion ban, which has no exceptions for medical emergencies, and the application of the federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires that emergency departments stabilize patients needing emergency care in Medicare-funded hospitals.
In Moyle v. United States, the Court ruled that it improvidently granted cert and returned the EMTALA issue for lower courts to decide. In the meantime, the district court’s injunction of the Idaho’s abortion ban stands insofar that it conflicts with EMTALA. Whereas pregnant people in Idaho should be able to receive emergency abortion care at present, those in Texas cannot. The Fifth Circuit held in a separate case that EMTALA does not authorize the federal government to compel healthcare providers to perform abortions, even in emergency situations. Courts in different parts of the country disagreed about when and whether emergency abortion care is ever warranted, and a potential circuit split on decisions out of Texas and Idaho could signal that the Court will consider abortion and EMTALA soon. Justice Ketanji Brown Jackson wrote in her dissent in Moyle: “Will this court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time?”
FDA v. Alliance for Hippocratic Medicine ostensibly was a victory for abortion rights supporters. The Alliance for Hippocratic Medicine, which formed shortly before the group sued the FDA, consists of five anti-abortion medical groups. Alliance alleged that the FDA exceeded its regulatory authority in approving mifepristone in 2000 and “chose politics over science,” “all to the detriment of women and girls.” Plaintiffs made three arguments sounding in safety, health, and science: (1) mifepristone is unsafe and causes physical harm to patients, who resort to and put a strain on emergency departments; (2) people suffer mental health consequences, such as depression and suicidal ideation, after a medication abortion; and (3) the FDA relied on flawed safety evidence when approving mifepristone and when revising the restrictions on the drug.
Judge Matthew Kacsmaryk in Amarillo agreed with each of these assertions. In April 2023, the district court issued a preliminary injunction suspending mifepristone’s approval. On emergency appeal, the Fifth Circuit ruled that the plaintiffs likely failed to timely challenge mifepristone’s 2000 approval and likely failed to plead an injury regarding mifepristone’s generic approval in 2019. But the court affirmed suspending FDA action starting in 2016, when the FDA eased several restrictions on mifepristone. One of those changes, in 2021, was the FDA’s removal of the in-person pick up requirement for mifepristone, which has enabled telehealth and mailed medication abortion to proliferate.
The Supreme Court did not consider the merits of the Alliance case. A unanimous Court held that Alliance did not have standing to bring its claims because the organization or its members could not show that the FDA’s actions caused them actual injury. But the issues at the heart of the case are unresolved. For instance, Justice Samuel Alito asked Alliance’s counsel multiple times during oral argument who can sue the FDA, if not Alliance. Justice Brett Kavanagh, who wrote the majority opinion, stated that “it is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” Alliance’s arguments could be repackaged in new litigation. In fact, Alliance’s claims track the findings of the February 2022 (pre-Dobbs) report by the Family Research Council, titled “The Next Abortion Battleground: Chemical Abortion.” The report referred to medication abortion as a “violent regimen” that results in “profound dangers” to people and is “uniquely traumatic.” New legislation in states like Louisiana, which classifies the drugs in a medication abortion as dangerous controlled substances, relies on the same assertions.
These cases capture battles over health evidence and divergent views of what protecting pregnant people’s health requires. And the issues they raise are not going away. The anti-abortion arguments in both cases are the centerpiece of a longstanding campaign to undermine the clear evidence of abortion’s safety and to contest that abortion is ever necessary. But consider that the majority of the Supreme Court opined, in Dobbs, that such considerations should not be the province of courts, but of state legislatures. Disagreements about abortion’s safety or necessity, as these two cases illustrate, will remain a fixture on the Supreme Court’s (and other courts’) docket.
Far from what the Court purported to do in Dobbs, judges will continue to decide abortion cases. And neither decision this term reveals what the majority of the Court thinks about the legality and safety of mailed medication abortion or the instances in which people need abortions in emergency situations. As facts and expertise continue to come under attack, we might wonder (and worry) how courts will parse the evidence they are presented while disclaiming authority to make decisions.
