Getting out of the fray over abortion is proving easier said than done for the US Supreme Court.
The recent
“There’s just no chance the court is going to get out of this for good, and I’m not entirely convinced they want to,” said Mary Ziegler, a University of California, Davis, law professor who wrote a book on the history of US abortion law.
That’s not exactly what the court promised when it overturned the landmark Roe v. Wade ruling 10 months ago in Dobbs v. Jackson. In his majority opinion, Justice
In his concurring opinion, Justice
Anti-abortion groups are already testing the court’s resolve. In challenging the
US District Judge
‘Likely Soon’
With the 5th US Circuit Court of Appeals planning to hear those appeals on an expedited schedule — arguments are set for May 17 — the case could be back at the Supreme Court in a matter of months.
“The issue seems bound to find its way back to the court, and likely soon,” said Steven Aden, chief legal officer at Americans United for Life, which supports the challenge.
The Texas lawsuit, which contends the FDA gave short shrift to safety concerns, ultimately could fail on procedural grounds. The administration says the suing groups and doctors aren’t suffering the type of injury that gives them legal standing to sue. And a panel of the 5th Circuit, the nation’s most conservative appeals court, has said it’s probably too late to challenge the FDA’s 2000 approval decision.
But even if that suit founders, one issue it raises could have ongoing resonance. Abortion opponents say an 1873 federal law known as the Comstock Act prohibits the mailing of drugs to end pregnancy, even in states where they are fully legal. The Biden administration contends the law has long been understood as applying only to drugs that would be used for illegal abortions.
When it partially blocked Kacsmaryk’s order earlier this month, the 5th Circuit panel suggested it read the Comstock Act as precluding the mailing of mifepristone.
“I could imagine the 5th Circuit finding a way to get rid of this on something like standing or timeliness with a long love letter to the Comstock Act, something essentially teeing up for anti-abortion lawyers in the future that the federal courts are still open for business but maybe sacrificing this case,” said Ziegler, who backs abortion rights.
Idaho Travel Law
Additional fodder could come from restrictions imposed by states, including a new Idaho law that makes it a criminal offense to help a minor get an abortion in another state. Kavanaugh suggested in his Dobbs opinion he might vote to invalidate that type of provision as violating the constitutional right to travel, but legal questions remain.
In another case from Texas, a different federal judge has blocked Biden administration guidance that tells hospitals they may have to provide abortions under a federal emergency care law. A federal judge in Idaho has reached a
Ultimately, the Supreme Court may be confronted with more far-reaching questions, including the prospect of a state ban that doesn’t provide exceptions when a mother’s life or health is at risk. Abortion opponents could also ask the justices to declare that the Constitution protects fetal rights, though the court so far hasn’t shown any appetite for that question.
“The majority’s sweeping language in the Dobbs decision seemed calculated to retire the court from the abortion wars,” Aden said. “But the enormity of the Texas chemical abortion case for women’s health and the struggle over abortion appear destined to pull them out right back into it.”
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Sara Forden
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