The Supreme Court has started issuing June decisions in pending cases that could affect the future of abortion access and reproductive health in the United States. Given SCOTUS’ last big abortion decision, Dobbs v. Jackson, which effectively ended the Constitutional right to abortion that had existed in the United States for 50 years, abortion rights advocates have been awaiting SCOTUS decisions with some apprehension.
The first SCOTUS decision on abortion this year is Alliance for Hippocratic Medicine v. FDA–a case about mifepristone, the drug which is a key part of medication abortion, the safest and most commonly used abortion method. Medication abortion accounts for more than 60 percent of all abortions in the United States. On June 13th, Supreme Court Justices unanimously ruled to dismiss the lawsuit seeking to reverse the Food and Drug Administration (FDA) approval for mifepristone. However, the decision to protect access to mifepristone was rooted in the Court’s finding that the plaintiff in the case–an anti-abortion association of doctors who explicitly seek to end abortion rights–did not have standing to bring the suit.
The legal decision is good news for people who need access to abortion and have other medical conditions for which mifepristone is an effective treatment. Immediately, it means that people who need medication abortion will not face any additional hoops or hurdles (beyond those that exist already) in access.
Although it’s a short-term relief, it’s also disturbing that this case got as far as the Supreme Court to begin with. After all, medication abortion has provided a safe and effective FDA-approved option for ending a pregnancy for over 20 years. It’s been widely used for abortion as well as for managing miscarriages and treating uterine fibroids without controversy for decades. Anti-abortion extremists used junk science and false claims to try and overturn FDA approval of the drug and to contradict years of data demonstrating the safety of the medicine. Had they succeeded, not only would millions have lost access to the medicine for abortion, but the authority of the FDA would have suffered, which could have cascading effects on other already approved drugs or on the agency’s ability to approve medicines in the future.
The Alliance v. FDA ruling circumvents these negative consequences, but it will not eliminate the debate about mifepristone. And, despite the good news for abortion access, the overall future of reproductive freedom in our country remains uncertain given the tenacity of abortion opponents seeking to totally ban abortion.
Justice Kavanaugh’s written opinion noted that while the physicians who brought the suit did not have standing, the current ruling doesn’t preclude other groups or plaintiffs who can show harm or standing from bringing forth a future case that may reach the Supreme Court. Justice Kavanaugh also explicitly stated that the availability of abortion medication is simply not a matter for the courts: the next administration could also take action to curtail the FDA. And, depending on the make-up of Congress next year, policy-makers could take legislative action to ban abortion or reduce access further.
There is another important abortion rights case that SCOTUS will decide this month. The Idaho and Moyle, et al. v. United States case challenges the federal Emergency Medical Treatment and Labor Act (EMTALA) and threatens to jail doctors for providing critical care to save pregnant patients’ life and health. At the heart of the case is the question of whether federal statute mandating that hospitals provide emergency care supersedes a state’s power to take away abortion access even in emergency situations where the patient’s health or life may be at risk. Idaho – the lead plaintiff in the case – has one of the most restrictive abortion bans in the nation, one that has resulted in physicians abandoning the state and in challenges for patients seeking reproductive care–including those who are pregnant or seeking maternity care. The consequences of banning abortion in this state will affect many more people than just those seeking to terminate pregnancies. The highest court’s decision could have far-reaching consequences.
Anti-abortion extremists have a multi-faceted strategy to cut off abortion access. They are certainly not depending on the courts alone to advance their agenda and that agenda is expanding to include much more than bans on abortion. In addition to attacks on abortion access and rights, there’s growing momentum to limit access to contraception and to halt In Vitro Fertilization (IVF), a procedure for conceiving a fetus. Restrictions on IVF are gaining momentum since the Alabama Supreme Court ruled that embryos created through IVF should have the same rights as children. The Southern Baptist Convention, the largest Protestant denomination in the United States, recently called for restrictions on IVF for instance. The vote coincided with a recent Senate vote in which Senate Republicans blocked a Democratic-led bill to codify broad federal protections for in vitro fertilization, defeating the bill by one vote. The House may take up a similar measure before the fall elections.