Supreme Court Rekindles Abortion Debate as Election Fight Looms

Greg Stohr
·6 min read
4

(Bloomberg) -- Two years after promising to get out of the abortion-regulation business, the US Supreme Court is again in the middle of the fray, with potentially far-reaching implications for reproductive rights and the November election.

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The court’s 2022 ruling overturning Roe v. Wade transformed the legal and political landscape. It cleared the way for tougher restrictions or bans on the procedure in Republican-led states and gave Democrats a potent political issue as abortion-rights advocates battle to prevent access from eroding further.

Now two looming arguments promise to fuel the debate. The high court on Tuesday will consider reducing access to a widely used abortion drug, and next month will weigh allowing state bans even when an emergency room doctor believes ending a pregnancy would preserve the mother’s health. Both cases pit the Biden administration against the Christian legal group leading the courthouse charge against abortion.

With rulings scheduled by the end of June, the cases are likely to serve as a mid-campaign reminder about abortion, underscoring both the outsize impact of the conservative-controlled high court and the significance of the November election on access to the procedure.

“There’s a lot of ways in which this could make who’s in the White House more important and also just make the abortion issue more salient,” said Mary Ziegler, a University of California, Davis, law professor who has written six books on the legal fight over abortion. “If you have major rulings on abortion about half a year before the election, it would make the issue more front of mind for voters who may otherwise be thinking about something else.”

In the aftermath the Supreme Court’s 2022 ruling in Dobbs v. Jackson, 14 states now ban abortion in almost all circumstances, and seven others have limits that previously would have been unconstitutional, according to the Guttmacher Institute, a research organization that supports abortion rights.

Election Impact

The ruling galvanized Democrats in the 2022 midterm elections, with both abortion-rights candidates and ballot measures winning big. The issue helped Democrats maintain control of the Senate and keep the Republican House majority razor thin.

The 2023 election produced more of the same, as abortion-rights advocates won on ballot initiatives in Ohio and Democrats seized the state legislature in Virginia after the Republican governor proposed a 15-week abortion ban.

Dobbs was an “unforced error” that Republicans need to work around, said Lisa Camooso Miller, a GOP strategist and former Republican National Committee communications director. “I’ve heard other Democrats say that this is the gift that keeps on giving. I don’t think they’re wrong.”

The cases being argued over the next month are the first abortion showdowns since the conservative majority in 2022 wrote that their Dobbs decision would “return the issue of abortion to the people’s elected representatives.”

Widespread Use

The justices will hear arguments Tuesday on a bid to restrict the availability of mifepristone, a pill now used in more than half of US abortions. The Biden administration is appealing a ruling that would bar mail-order prescriptions and require in-person doctor visits.

Read more: All About the Abortion Pill Mifepristone

The high court is reviewing a ruling by the 5th US Circuit Court of Appeals to roll back changes made by the Food and Drug Administration since 2016. That includes the regulator’s 2021 decision to permanently jettison the requirement that patients physically visit a medical provider. The appeals court said the FDA gave short shrift to safety concerns.

“In loosening mifepristone’s safety restrictions, FDA failed to address several important concerns about whether the drug would be safe for the women who use it,” Judge Jennifer Walker Elrod wrote for the 5th Circuit, perhaps the country’s most conservative appeals court.

Abortion-rights advocates say that analysis flies in the face of the medical and scientific evidence about mifepristone and the use of telemedicine to distribute the drug.

“There’s at least 100 papers out there that are proving that it is as safe as in-clinic abortions,” said Rebecca Gomperts, a doctor who founded Aid Access, which assists women who are unable to access local abortion services. “So there is no risk. We know that.”

A ruling in favor of abortion opponents would mark the first time the Supreme Court has ever second-guessed the FDA on the safety and effectiveness of an approved pharmaceutical.

Emergency Rooms

The second case, set for argument April 24, tests whether Idaho’s near-total abortion ban must yield to a federal emergency-care law that requires hospitals receiving Medicare dollars to provide “necessary stabilizing treatment” to patients.

The Biden administration says the federal law, the 1988 Emergency Medical Treatment and Active Labor Act, or EMTALA, means hospitals must perform abortions when needed to prevent a serious health risk to the mother. Idaho, which allows the procedure only to save the mother’s life, says EMTALA doesn’t mandate abortion and actually requires hospitals to provide stabilizing care for the fetus.

The high court ruling will affect other states with sweeping bans, including Texas, which is waging a similar legal fight against the administration. The decision could also hint at the justices’ views on far-reaching constitutional questions, including so-called “fetal personhood” arguments pressed by conservative advocates.

The administration is squaring off in both cases against Alliance Defending Freedom, a Christian group that helped drive the effort to overturn Roe and has pushed the court to expand religious rights.

Jim Campbell, the group’s legal counsel, said the administration in both cases is trying to undercut the views of states that oppose abortion.

“The federal government in the EMTALA case is trying to distort federal law to reach into pro-life states and take away their autonomy to address the issue of life and abortion themselves,” Campbell said. And in the FDA case, “the administration, by authorizing abortion by mail, has created a regime where it’s really having the practical effect of overriding pro-life states laws,” he said.

Abortion-rights advocates say it’s the opponents who are pushing the bounds of the law and seeking to go beyond what they won in Dobbs.

“Abortion opponents were never going to stop at overturning Roe,” said Diana Salgado, a lawyer with Planned Parenthood Federation of America. “This was never about returning the issue to the states. The intention has always been to control people’s personal medical decisions and restrict abortion access.”

The lead cases are Food and Drug Administration v. Alliance for Hippocratic Medicine, 23-235, and Moyle v. United States, 23-726.

--With assistance from Hadriana Lowenkron.

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