Will Abortion Issues Return to the Supreme Court?

The Court has been asked to intervene in cases involving abortion pills and criminal prosecution of abortion doctors. 

Abortion issues are back before the Supreme Court, though it's unclear as of yet whether (or how) the Court will decide to act. At a private conference tomorrow, justices are scheduled to consider whether to take up a high-profile case about the abortion-inducing drug mifepristone. The justices have also been asked to intervene in a case involving Idaho's strict abortion ban, which criminalizes doctors who terminate pregnancies and does not contain an exception for when a pregnant woman's health is at risk.

Abortion Pills 

The Court intervened in the mifepristone case earlier this year, pausing an April decision by U.S. District Judge Matthew J. Kacsmaryk until all appeals were resolved. Kacsmaryk had held that the U.S. Food and Drug Administration (FDA) erred when it approved Mifeprex—a brand-name version of mifepristone—in 2000, and erred again when it approved generic mifepristone and loosened the rules around prescribing abortion pills. Kacsmaryk's ruling would have suspended access to mifepristone and its generic equivalents across the country, effectively ending legal access to the most common first-trimester method of terminating pregnancies. Both the Biden administration and Mifeprex maker Danco Laboratories appealed, and on April 21 the Supreme Court said abortion pills should stay legal pending the outcome of those appeals.

In August, the U.S. Court of Appeals for the 5th Circuit partly upheld Kacsmaryk's decision. "We vacate the component of the order that stayed the effective date of the 2000 Approval and the 2019 Generic Approval," the court said. But it approved parts of Kacsmaryk's ruling concerning virtual prescriptions, shipping abortion pills by mail, and allowing lower doses to be prescribed.

Danco Laboratories and the Biden administration then asked the Supreme Court to take up the case. The group challenging the FDA's approval also petitioned the court, asking it to take up the arguments the appeals court had rejected.

If the Supreme Court does not decide to act, the 5th Circuit's decision—keeping abortion pills legal but changing the rules around how they can be prescribed—will take effect. If the Court does take up the mifepristone case, it could allow the current prescription scheme to remain in place. It could also adopt Kacsmaryk's interpretation of things, finding the original FDA approval in error and ending legal access to the drug.

Idaho Abortion Ban 

The Court has also been asked to consider an Idaho abortion ban, which was passed in 2020 and triggered into effect by the overturning of Roe v. Wade in 2022. The Idaho ban—one of the strictest in the country—makes it a crime for physicians to perform an abortion at any point in pregnancy.  If a doctor can prove an "abortion was necessary to prevent the death of the pregnant woman" or that the pregnancy resulted from a rape that was reported to police, they can use this as a defense against criminal charges. But these are not blanket exceptions, merely affirmative defenses against conviction. If doctors who perform abortions can't prove an exception applied, they could face up to five years imprisonment. Even doctors using their best judgment that an abortion is medically necessary could be punished if the state doesn't agree that a pregnant woman's life—not just her health—was at risk.

In August 2022, the Department of Justice sued over the ban. The lawsuit seeks not to strike down Idaho's abortion ban entirely but to make sure it requires relevant exceptions.

The suit says the law violates the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals that accept Medicare to provide "stabilizing treatment" in emergencies. The Biden administration announced in a 2022 directive that stabilizing treatment could indeed include abortion. "If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person—or draws the exception more narrowly than EMTALA's emergency medical condition definition—that state law is preempted," said the Department of Health and Human Services (HHS).

"When a hospital determines that an abortion is the medical treatment necessary to stabilize the patient's emergency medical condition, it is required by federal law to provide that treatment," Attorney General Merrick Garland reiterated at an August press conference about the Idaho suit.

Idaho suggests the federal government is overreaching by using the EMTALA to try and dictate nationwide abortion policies. "The United States' position conflicts with the universal agreement of federal courts of appeals that EMTALA does not dictate a federal standard of care or displace state medical standards," the state has argued, noting EMTALA's "silence" on abortion.

Last summer, a U.S. district court granted the Justice Department's request for a preliminary injunction against the ban, holding that it was preempted by federal law. But Idaho appealed, and in September, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit found that "Idaho's law is not preempted by EMTALA." The judges granted the legislature's motion to stay the injunction pending the outcome of the appeal—meaning that the state could start enforcing the ban.

Then, in October, the 9th Cicuit agreed to vacate that panel ruling and have the matter heard before the full court (which has 11 judges). It's slated to do this early next year.

On November 26, Idaho Attorney General Raúl Labrador filed an emergency petition with the Supreme Court. It seeks permission to enforce the law pending the appeal's resolution or to take up the case for a full review on the merits. The Idaho legislature has also asked the Supreme Court for a stay.

As with the mifepristone case, this one could have wide-reaching implications, since it concerns not just Idaho's ban but also HHS's interpretation of a federal law that affects all states. And, more broadly, it concerns the limits of federal control over state abortion policies.