Last month, the Supreme Court returned to the politically charged issue of abortion for the first time since overturning Roe v. Wade in 2022. At first blush, its rulings appear to preserve some access to abortion. But a more clear-eyed assessment tells a very different story of a conservative super-majority on a path to further threaten reproductive freedoms.
In the first case, FDA v. Alliance for Hippocratic Medicine, the court ruled that anti-abortion organizations and doctors did not have standing to challenge FDA approval of mifepristone, a medication used in 63% of all U.S. abortions in 2023. In the second case, Moyle v. United States, the court issued a unanimous opinion stating it had “improvidently” agreed to take the case, dismissing a case that could have severely limited emergency healthcare for pregnant individuals in the state of Idaho. Neither case settled the crucial issue of healthcare access presented by medication abortions and emergency medical care.
Much of the media badly misreported these cases as “wins” for reproductive rights. They were decidedly not. Patients and providers will continue to be threatened by harsh legal penalties for dispensing abortion medication and treating pregnant individuals in emergency care. Both issues may well come back to the Supreme court in the near future, and a conservative supermajority remains openly hostile to reproductive rights. And if former President Donald Trump is reelected, the threats to abortion may come fast and furious.
A Closer Look at the 2024 Abortion Rulings
In FDA v. Alliance for Hippocratic Medicine, the Supreme Court unanimously held that while the anti-abortion doctors and associations had “legal, moral, ideological, and policy objections” to mifepristone, they lacked a personal stake in the dispute, given that they neither used nor prescribed the drug, and thus lacked standing to bring the case.
Notably, the opinion did not touch on whether the Comstock Act of 1873 — which broadly prohibits sending obscene or abortion-related materials through the U.S. Postal Service — prohibits the mailing of medication abortion drugs. Justice Department guidance states that the Comstock Act does not apply to abortion medications because they have legal uses in all states — for example, mifepristone could be used to manage a miscarriage or for an abortion before 6 weeks of gestation. But a new administration or future Supreme Court opinion could take a very different view, threatening nationwide access.
The opinion did provide a blueprint for how other plaintiffs can bring challenges in federal court, leaving the door open to future challenges to mifepristone. Additionally, the opinion broadened the scope of federal conscience laws, holding that physicians could refuse to provide the full range of reproductive care. Moreover, though the court’s holding preserves access to medication abortion for now, three states (Idaho, Kansas, and Missouri) that intervened in the litigation have pledged to proceed with the lawsuit — and such litigation would continue before the same district court judge that granted a nationwide stay of FDA’s initial approval of the drug.
Weeks later, the court dismissed Moyle v. United States on procedural grounds as “improvidently granted,” meaning that the court should not have taken the case in the first place. The court refused to clarify whether hospitals nationwide had to follow the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires “stabilizing” care in medical emergencies. Under the Constitution’s Supremacy Clause, federal law supersedes state law. In this case, it should have been an easy decision to require hospitals to provide emergency services to pregnant patients as required by EMTALA.
In dismissing the case, the court acknowledged that it interfered too quickly by keeping Idaho’s restrictive abortion law in place while the case was being heard — according to Justice Ketanji Brown Jackson, it was a “months-long catastrophe” that was “completely unnecessary.” As a result of the dismissal, patients in Idaho may now access abortion care in emergency departments if necessary to preserve their health while the case proceeds in the lower courts. But the court shed no light on whether other states with restrictive abortion bans must comply with this interpretation of EMTALA. Meanwhile, the Fifth Circuit’s ruling that Texas’s abortion restrictions supersede EMTALA is still pending review from the Supreme Court, and Texas continues to restrict emergency abortion care.
Such variation in state law and lack of guidance from the court have posed continued confusion for physicians and devastating barriers to care for pregnant patients.
Ongoing Attacks on Reproductive Health and Rights
Though the court evaded critical questions about access to abortion care this term, the fallout from Dobbs continues to manifest in a slew of follow-up legal questions in lower courts. For example, groups of abortion rights advocates have challenged Idaho and Alabama laws that criminalize assisting individuals who seek abortions outside the state.
Additionally, a group of professors has challenged an Idaho law that criminalizes public employees for speaking freely about abortion. And a physician in Idaho has filed a complaint to establish a constitutional right to “medically indicated care,” including abortions when appropriate. In Texas, the state attorney general and two professors have challenged Title IX rules that prohibit sex discrimination in education, arguing that they plan to penalize any student who is absent because they are obtaining an abortion. Meanwhile, constitutional challenges to state legislation abound from both sides.
There is no shortage of legislative efforts to fill in the gaps. Some states are moving to legalize abortion via ballot measures in upcoming elections. Many blue states have enacted telemedicine abortion shield laws to protect pharmacists and physicians as well as telehealth data. On the other hand, in recent months, Louisiana and other states have passed laws to reclassify abortion pills as controlled dangerous substances. And these laws are being litigated too — for example, in North Carolina, a district judge recently struck down burdensome restrictions on accessing mifepristone.
What Comes Next
Though the Supreme Court punted on critical abortion questions, it took big swings in overturning the Chevron doctrine, making it easier for agency rules — including those that impact reproductive health — to be whittled away via litigation.
Though the court has yet to take up any abortion cases for the upcoming term, it has agreed to hear a case about Tennessee’s ban on gender-affirming care for transgender minors. This case could touch on sex-based discrimination and whether minors can access medical services, including reproductive care, without parental consent. And given the many abortion issues being challenged in the lower courts, a number of these could make their way to the Supreme Court’s docket.
Importantly, the upcoming term will be accompanied by a grueling presidential election — a factor that may have guided the court’s decision to shrink away from making substantive abortion decisions. In a second Trump administration, anti-abortion advocates may be less inclined to sue the government on issues like preemption and agency decision-making authority. On the other hand, in a second Biden administration, litigation would likely continue at full force, pushing the right-wing justices to provide clarity on these issues. Either way, the upcoming months are likely to bring turbulent changes to the public health landscape, particularly for pregnant people and their healthcare providers.
In America today, the rights and freedoms of pregnant individuals, women, and all of us are in serious jeopardy.
Sheela Ranganathan, JD, is an associate with the Health Policy and the Law Initiative at the O’Neill Institute at Georgetown University in Washington. Sarah Wetter, JD, MPH, is a senior associate with the O’Neill Institute. Lawrence O. Gostin, JD, is Distinguished University Professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute. He is also director of the World Health Organization Collaborating Center on National & Global Health Law. He is the author of the book, Global Health Security: A Blueprint for the Future.
Please enable JavaScript to view the