‘A battle to the death’: The next abortion cases en route to the Supreme Court

The Supreme Court’s decision to sidestep key legal questions in its abortion decisions this term sets up another showdown as early as next year.

And the next wave of lawsuits around the procedure — including challenges targeting the ability of patients to cross state lines for abortions, the regulation of abortion pills, and minors’ ability to get an abortion without parental consent — is already moving toward the high court.

Even as President Joe Biden campaigns on a promise to protect and restore federal abortion rights and former President Donald Trump calls for leaving regulation of the procedure to states, it is the Supreme Court, as much or more than any elected official, that will shape access across the country in the years to come.

“It was ridiculous when the court said two years ago that overruling Roe was going to get the court out of the business of abortion,” said Leah Litman, a professor at the University of Michigan School of Law. “There’s an entire new frontier of abortion litigation that’s going to make its way to the court no matter what happens in the election. This just isn’t going anywhere.”

While the court did not address the merits of either abortion case it heard this term — punting on abortion pills and the right to an emergency abortion — some justices offered clues to how they would approach future litigation. Multiple members of the court’s conservative supermajority, for instance, appeared open to the argument that the 14th Amendment confers legal personhood to fetuses — a holding conservatives believe could create a national ban on abortion at any stage of pregnancy.

The court also invited new lawsuits with its Friday decision overturning the Chevron doctrine — stripping leeway federal agencies had to interpret and implement legislation and putting it in the hands of judges — and Monday’s ruling lifting the statute of limitations on challenging older government rules. This could create an open season on whatever future abortion policies the next president attempts to enact as well as rules already on the books — from FDA regulation of abortion pills to the availability of abortions at VA clinics to the recent expansion of HIPAA to protect abortion data.

“For somebody who doesn’t like regulations that the current administration has put forward, the world is their oyster,” said Andrew Twinamatsiko, director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute. “Even regulations that have been there for decades could be opened up to new challenges.”

He added that while the decision technically cuts both ways — allowing challenges to rules adopted by either Republican and Democratic administrations — it is likely to benefit conservatives.

“If you have a judiciary that has been fundamentally reconfigured by the Trump-McConnell Twin Towers, including a conservative majority on the Supreme Court, they’ll be the ones to ultimately decide policy choices masquerading as legal questions,” he predicted.

The flow of patients and pills

Many cases in the judicial pipeline target the most common ways patients circumvent state abortion bans: traveling across state lines and ordering pills from another state or country.

The Supreme Court this month did not end the challenge to the recent FDA policies that made abortion pills available by telemedicine and mail delivery. It merely kicked the case back to the same district court judge who previously ruled to ban the drugs nationwide. And while the justices said the anti-abortion doctors who brought the suit lack standing, Republican officials from Idaho, Kansas and Missouri are trying to take their place.

Litman said the states’ standing in the case — which hinges on claims that they’ve suffered economically from covering the cost of treating Medicaid patients who took abortion pills and required follow up care — is as squishy as the doctors who were turned away by the Supreme Court this term. But the Trump-appointed judges set to hear the case may still allow it to proceed.

“Aside from those states not wanting people to get abortions, they don’t really have a cognisable injury,” she said. “But because this is [Texas District Court judge Matthew] Kacsmaryk and the Fifth Circuit, I can’t say it’s not going to happen.”

There are also fresh concerns that the FDA’s 2000 approval of mifepristone could be in the legal crosshairs — a challenge federal courts previously said was barred by the statute of limitations.

The Supreme Court on Monday ruled that people can bring cases against federal rules that have been on the books for many years. Justice Ketanji Brown Jackson warned in her dissent that the ruling could revive efforts to overturn the FDA’s quarter-century-old approval of the abortion pill mifepristone.

Other cases moving through federal courts could either restrict or expand access to abortion pills in the years to come.

Federal cases in North Carolina and West Virginia are also testing whether states can impose restrictions on mifepristone that the FDA says are burdensome and medically unnecessary — from waiting periods and mandatory ultrasounds to outright bans.

The West Virginia case, brought by the abortion pill manufacturer GenBioPro, is at the 4th U.S. Circuit Court of Appeals, and the North Carolina case may soon join it there. An additional long-dormant case in Hawaii seeking to lift the remaining restrictions on abortion pills may resume in the wake of the Supreme Court’s decision to dodge the legality of restrictions on the drugs.

“Mifepristone is going to be a battle to the death,” said Molly Meegan, the chief legal officer for the American College of Obstetricians and Gynecologists. “Any possible legal challenge that can be made is going to be made.”

Legal experts on both sides of the abortion fight also anticipate lawsuits testing the protective power of the so-called shield laws more than a dozen blue states have adopted, some of which allow their doctors to prescribe abortion pills via telemedicine to patients in states with bans without fear of prosecution. Anti-abortion activists and conservative officials are keen to challenge these laws as they become one of the predominant ways red state residents are able to terminate pregnancies.

A recent study by the Society of Family Planning found that in 2023, nearly 8,000 people every month in states with bans received pills via telehealth from clinicians in states with shield laws.

“Whether and to what extent a pro-life state like Mississippi or Louisiana or Missouri can protect their citizens from these drugs being mailed in will depend on whether those abortionists can evade liability for their actions,” said Steven Aden, the chief legal officer and general counsel at Americans United for Life. “At some point, probably soon, the Supreme Court will have to decide whether a judgment obtained against an abortionist in Mississippi or another pro-life state can be enforced against that individual or against that organization in a state that has a shield law on its books, or whether that violates the federal constitution.”

Other federal lawsuits in Alabama, Idaho and Texas, which may end up before the Supreme Court, focus on whether and to what extent anyone in states with bans — doctors, family members, friends — can help a patient travel to another state for an abortion.

Idaho’s case, currently at the 9th U.S. Circuit Court of Appeals, could determine whether doctors there can be criminally charged for referring people for abortions outside the state. A lower court ruling said the attorney general’s threat to prosecute doctors for such referrals violates their First Amendment right to share information with patients.

The Alabama and Texas cases focus on threats from those state attorneys general to charge abortion funds and clinics in the state for “aiding and abetting” out-of-state abortions by offering patients resources and publicly available information.

“We’re seeing states trying to not only prevent people from getting abortion inside their states, but from leaving the state to get abortion care,” said Jennifer Dalven, the director of the Reproductive Freedom Project at the American Civil Liberties Union. “They know people have a right to travel so they’re instead saying: Nobody can help you. Nobody can give you the ride home. Nobody can help you pay for it. Nobody can watch your kids. All of those things actually prevent people from traveling to get care that’s legal.”

Anti-abortion leaders acknowledge these cases are challenging and say they’re more optimistic about restricting the rights of children and teenagers to cross state lines for abortions — and prosecuting those who help them do so.

“Clearly, adults have a constitutional right to travel for whatever purpose,” Aden said. “But minors do not have a constitutional right to travel without their parents’ knowledge or consent.”

Transgender care and parental consent

A case the Supreme Court has agreed to hear next term examines the constitutionality of Tennessee’s ban on certain forms of gender-affirming care for transgender minors, which doctors and the Biden administration say violates the patients’ right to equal protection without gender-based discrimination.

Anti-abortion leaders say the justices could use the case to determine whether minors can access a range of medical services without their parents’ knowledge or consent — from gender-affirming hormones to abortions.

“We don’t know what this Supreme Court would say about the potential conflict between the parents’ right to decide the medical care for their children and a minor child’s desire to obtain an abortion,” said Aden, adding that AUL may submit a brief to the court prompting them to make such a determination. “It’s a question I think the Supreme Court will have to clarify sooner or later.”

Abortion-rights advocates are skeptical that the case could extend to abortion, noting that the Supreme Court did not accept a connected petition on whether the state’s ban violates minors’ due process rights, which more directly relates to abortion than the Equal Protection claim the justices will hear. Still, the ACLU and ACOG cautioned, the court has a record of reaching beyond the petitions it initially accepts — as it did in the case that overturned Roe in 2022.

“I’m very worried given what happened in Dobbs,” said Meegan. “You may see exactly the same thing, where they say states can do what they want.”

She added that Justice Brett Kavanaugh’s recent opinion in the mifepristone case includes clues to how he and other justices may rule in the future. “He wrote in at least two different places that most questions belong in the political context and most of these issues should be decided at the state level,” she said. “He is setting up a clear judicial philosophy that allows much of these culture war issues to be decided at a state level and not subject to substantive due process protections.”

EMTALA redux

The Supreme Court’s decision to punt on whether states can restrict abortion access in medical emergencies raises the likelihood of another clash as early as next term, Idaho Attorney General Raúl Labrador noted on a call with reporters last week.

The 9th Circuit is expected to hear arguments soon on whether Idaho’s ban, which only allows abortions in imminent life-threatening circumstances, violates the Reagan-era federal law, known as EMTALA, which requires hospitals to stabilize any patient that arrives in crisis. As the case plays out, a lower court ruling means Idaho hospitals must offer abortions in medical emergencies. The 5th Circuit, meanwhile, ruled to allow Texas to bar most abortions even in circumstances that the Biden administration argues infringe on EMTALA. A potential circuit split on the issue makes it highly likely that the Supreme Court will take another look.

“Medical emergency exceptions are going to continue to be a huge focus in the next year in multiple suits across the country,” Meegan said. “The real question is: How far can a state go in limiting the choices of a person that’s in danger based upon a pregnancy complication?”

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