On the surface, abortion rights have had a good run on the Supreme Court this term. Two weeks ago, the justices unanimously let the abortion pill remain widely available. On Thursday, the court rejected a case over Idaho’s strict abortion ban, which has had the effect of allowing the state’s emergency rooms to perform the procedure when a patient’s health is at risk.
But the two rulings were so technical as to be ephemeral. They seemed designed to evade and delay, to kick a shaky argument down the road — or at least after Election Day.
Some abortion rights advocates called these rulings Pyrrhic victories, fearing they would pave the way for further restrictions, either by the courts or by a second Trump administration.
In Dobbs v. Jackson Women's Health Organization, the 2022 decision that overturned Roe v. Wade, the Supreme Court signaled that it was getting out of the abortion business. “The authority to regulate abortion must be returned to the people and their elected representatives,” Justice Samuel A. Alito Jr. wrote for the majority.
The two recent rulings were generally consistent with this sentiment, although Justice Alito himself was eager to take up Thursday's case. “Apparently,” he wrote, “the court has simply lost the will to decide the easy but emotional and highly politicized issue that the case presents. This is deplorable.”
The majority took a different view, but its evasion strategy cannot last, said Mary Ziegler, a law professor at the University of California, Davis.
“What is clear, both in this mandate and in what will likely come next, is that the fight against abortion is not left to the states,” he said. “The executive branch and the Supreme Court will continue to have their say.”
David S. Cohen, a law professor at Drexel University, said the end of Roe was the beginning of a war in which each side seeks total victory. This means, he said, that the Supreme Court will not be able to avoid difficult questions in the long term.
“In both cases,” he said of this month's decisions, “the court avoided addressing the quagmire created by the overturning of Roe v. Wade. Without a national right to abortion care, controversial cases like these will return to the court again and again. The court will not be able to avoid its self-imposed mess forever.”
He added: “Neither side in this debate is going to stop fighting for the outcome they prefer, which is a national rule that applies everywhere. So there is no doubt that we will see more and more cases like this coming to the Supreme Court in the years to come.”
The two sentences solved almost nothing.
The first simply said that doctors and groups challenging the Food and Drug Administration's approval of an abortion pill had not suffered the kind of harm that gave them the right to sue. The court did not rule on whether the agency's action was legal.
Other challengers, notably three states that have already intervened in the court case – Idaho, Kansas and Missouri – will continue to fight. Their challenge could reach the Supreme Court fairly quickly.
The Idaho case was even more of a non-event. The court, which had made the unusual decision to agree to review a lower court's ruling before an appellate court acted, thought it wise not to get involved so early.
The court dismissed the case as “imprudently admitted,” the judicial equivalent of saying “never mind.” After the appellate court, the Ninth Circuit Court of Appeals, rules, the Supreme Court can return to the case.
Or it could hear an appeal involving a substantially similar Texas law that was upheld by the Fifth Circuit. The Biden administration has already filed a petition seeking review of that ruling.
“Both decisions strike me as Pyrrhic victories for the Biden administration,” Professor Ziegler said. In the abortion pill case, Food and Drug Administration v. Alliance for Hippocratic Medicine, he said, the court interpreted the protection of the conscience of doctors opposed to abortion much more broadly than it had in previous decisions.
In the emergency abortion case, Moyle v. United States, Professor Ziegler said that Judge Amy Coney Barrett “touched on the importance of conscience protections and expressed suspicions about mental health justifications for abortion, both which could have consequences in the future.”
Rachel Rebouché, dean of Temple University's Beasley School of Law, said that “these decisions cannot be described as clear victories for abortion advocates.”
“The issues at the heart of both cases will certainly come back before the court,” he said. “The court did not rule on the merits of either decision, and there are already cases in the pipeline to test the legality of mail-in medical abortion and to uphold state abortion laws that make no exceptions to avoid serious injury or threats to health”.
The upcoming election may have played a role in the Supreme Court’s failure to act. After all, the Dobbs decision, issued months before the 2022 midterm elections, was a political windfall for Democrats.
Greer Donley, a law professor at the University of Pittsburgh, said the court’s conservative majority may have wanted to avoid “an unpopular merit-based abortion decision in an election year.”
Professor Ziegler said she was unsure how the election figured into the court’s calculations.
“It would have been extraordinary for the Court to issue two major decisions in an election year, and it is fair to assume that the Court’s more institutionalist justices were looking for a way to avoid that outcome,” he said. “At the same time, in both cases there were real reasons to delay the decision on the merits.”
He added: “That means there is no hard evidence to suggest this is an election-day about-face – after all, why address these cases in an election year? – but it seems quite likely that the upcoming election has made it even more tempting to delay the decision.”
If Mr. Trump wins, much of what was at issue in the two cases could be resolved by executive action. His administration could roll back emergency room care guidelines at issue in the Idaho and Texas cases, and it could interpret an old law, the Comstock Act, to try to ban the mailing of abortion pills.
Yet whatever one might say about the direction of the Supreme Court's abortion jurisprudence, Professor Cohen said, it is important not to lose sight of who won and who lost in the two recent decisions.
“The anti-abortion movement made great strides with these cases and failed in both,” Professor Cohen said. “They failed to stop abortion pills, nor to prevent federal law from overriding state abortion bans. That may change in the future, but right now they are 0-2 behind Dobbs.”