Abortion Return to Supreme Court Likely as Drug Rulings Collide

Conflicting rulings out of Washington state and Texas all but guarantee that abortion will be back at the US Supreme Court less than a year after the landmark decision overturning it as a constitutional right.

The Biden administration already said it plans to appeal a Texas federal judge’s April 7 ruling that the Food and Drug Administration unlawfully approved the use of mifepristone for early-stage abortions in 2000. That same day, another federal district judge in Washington upheld the decades-old approval. The administration has sought clarification of that ruling.

No matter what these lower court judges decide, “someone will go up to the Supreme Court,” said Jenner & Block’s Adam Unikowsky.

And even more cases are likely to land at the high court despite the conservative majority’s assurance that the June 2022 ruling in Dobbs v. Jackson Women’s Health Organization that invalidated Roe v. Wade took the issue out of the judiciary and returned it “to the people’s elected representatives.”

These cases “reveal the lie of Dobbs that the court would be out of the abortion issue,” said New York University School law professor Melissa Murray.

Appeals Courts

Any appeal of the Washington ruling by Judge Thomas O. Rice, an Obama appointee, would go to the US Court of Appeals for the Ninth Circuit. But the government’s motion and the lack of a looming deadline in the case makes it unlikely it will be resolved before the one out of Texas.

The Fifth Circuit could potentially “cut this off” before it gets to the justices by reversing the order handed down by Judge Matthew Kacsmaryk, according to University Pittsburgh Law School professor Greer Donley, who was involved in that litigation.

But she said “the Fifth Circuit tends to be seen as more conservative than the Supreme Court,” which currently has a 6-3 conservative majority.

The outcome will likely depend on which judges hear the appeal, Unikowsky said. He also noted that the plaintiffs challenging the abortion drug could ask the justices to intervene if the Texas ruling in their favor is reversed. They include anti-abortion doctors and associations.

The Texas ruling by the Trump appointee was stayed until April 14. But the Supreme Court will almost certainly weigh in if it is allowed to stand, particularly because there are conflicting federal orders, said Naomi R. Cahn, who heads the University of Virginia’s Family Law Center.

She noted that the underlying issue in both cases isn’t the right to an abortion, but rather an administrative question about whether the FDA properly approved the use of mifepristone for early-stage abortions.

“This fight isn’t directly about abortion,” Cahn said.

Because of that, any Supreme Court vote lineup could differ from the 5-4 ruling in Dobbs, she said.

Millions Impacted

Michael Waldman, the president and CEO of the Brennan Center for Justice, called the repercussions of the Dobbs decision a “political earthquake,” both for politics and the court’s legitimacy.

Even some of the conservative justices must have it in the back of their mind that allowing the Texas ruling, which applies nationwide, affects millions of Americans, and rests on novel legal grounds, would be a further crisis of confidence, Waldman said. “I have to think the Supreme Court would want a way to put this on ice,” he said.

The justices might not have to wait for the Fifth Circuit to decide, given that the Texas ruling is set to take effect in days. In a filing on Monday, the Biden administration asked the Fifth Circuit to decide by April 13 whether it will pause the order so the government can “seek relief in the Supreme Court if necessary.”

There is precedent for fast-tracking an abortion appeal. In 2021, the high court agreed to consider a challenge to Texas’ SB 8 law, which allowed any person to sue Texans who facilitated an abortion, even though the appellate court hadn’t weighed in. The Supreme Court ruled 8-1 that the challenge could go forward.

Unikowsky said it’s very unlikely that the Supreme Court would just run out the clock. Instead, it would temporarily stay Kacsmaryk’s order to give the justices more time to decide.

These cases are likely just the first of many abortion-related questions that will work their way up to the justices in the near future, Cahn said, pointing to recent state laws barring travel to obtain an abortion, prohibiting the mailing of abortion pills, and shielding doctors who perform the procedure.

Just like Roe didn’t resolve the abortion debate in the courts, the thinking is neither will Dobbs.

The justices will be fighting about abortion “until the end of time,” Unikowsky said.

The cases are Alliance for Hippocratic Medicine v. US Food and Drug Administration, N.D. Tex., No. 2:22-cv-00223 and Washington v. FDA, E.D. Wash., No. 1:23-cv-03026.

— With assistance from Jeannie Baumann