Supreme Court’s Handling of Abortion Case Embraces Past Practice

The US Supreme Court seemed to return to its normal course of business for dealing with emergency requests when it put lower court decisions on hold that had restricted access to a key abortion drug.

In a 7-2 decision on Friday night, the justices halted a Texas court ruling that would’ve curbed the use of medicine-induced abortion for early term abortions.

Alliance Defending Freedom’s Erik Baptist, who represents the group challenging the FDA’s approval, called the court’s order “common practice.”

But it’s also a change from what’s become the norm in recent terms for how the court has dealt with emergency requests for immediate action following criticism over the handling of these so-called shadow docket cases. In rulings involving Covid vaccines, the death penalty, and even abortion, the justices have stepped in at an early stage to decide the issue for themselves.

Here, the court “literally just hit the pause button without explaining its decision and weighing the merits in one way or the other,” Baptist said.

Shadow Docket

Mary Ziegler, a law professor at the University of California, Davis, said “there is an element” of the ruling that suggests the court is returning to its normal use of the shadow docket.

The court normally uses its shadow docket to handle death penalty cases, said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. Here, Sepper said, there wasn’t the same sense of urgency for the court to act.

Thomas Jipping, a senior legal fellow at The Heritage Foundation, said it isn’t unusual for a court to want to keep the status quo while an issue is being litigated. He didn’t seem surprised the Supreme Court did that here.

“Generally speaking courts are reluctant to step in early and block things with stays and injunctions and stuff until there is a final decision on the merits,” Jipping said, noting that stays and injunctions are extraordinary forms of relief. “That’s not a typical thing to do and this case it seems is on a fast track.”

But Jipping doesn’t think anything can be read from the court’s decision on Friday about how it plans to handle emergency requests moving forward.

“The only way that one case could be some kind of an indicator is if each case was the same when of course they’re not,” he said. “There’s no way to tell from one case with its unique facts how that’s going to affect other cases with other facts in the future.”

Changed Practice

Legal scholars in recent years have questioned whether the court is using the shadow docket to rule on significant issues without full briefing, argument, or a written opinion to explain the justices’ reasoning. Not allowing the issue to percolate in the lower courts means the justices don’t benefit from their reasoning, say critics.

Some justices have expressed unease about the court’s handling of emergency requests. Justice Elena Kagan warned the court was rendering its “emergency docket not for emergencies at all” when it agreed to reinstate a Trump administration rule that limited protections for bodies of water under the Clean Water Act in April 2022. Chief Justice John Roberts joined her in that criticism.

The court had more recently taken a different approach.

In September 2021, the justices stayed the execution of a Texas inmate and made the rare move of pushing his case to the merits docket to be fully briefed and argued. The court ultimately sided with the inmate who wanted his pastor to be able to pray along and touch him while he was being put to death.

The justices then made the same move a month later in a fight over Texas’ ban on most abortions after six-weeks. In that case, they fast-tracked arguments over the law’s novel enforcement mechanism.

In December that year, the justices scheduled a special session to decide whether to let President Joe Biden’s Covid-19 vaccine mandates take effect. The vaccine cases marked a rare instance where the court heard arguments on emergency applications. Typically those requests are fought over in briefing only. Then last term, the court moved two separate disputes over Biden’s student loan forgiveness plan from the emergency docket to the merits docket.

‘Dangerous Cabal’

Justice Samuel Alito’s solo dissent from the ruling Friday suggests he also sees a change in the court’s approach.

Alito was initially dismissive of criticisms of how the court managed emergency applications. In September 2021, he said in a speech that the “catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way.”

“This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution,” Alito said at the time.

In his dissent Friday, he noted that he “did not agree with these criticisms at the time.” But “if they were warranted in the cases in which they were made, they are emphatically true here,” Alito said.

It’s telling that the court didn’t grant this case and treat it like a petition for certiorari to decide the merits, Baptist said. The justices sent “it back down to the Fifth Circuit, but didn’t really give any direction to the circuit.”

“So we’re gonna see ourselves likely back before the Supreme Court, no matter what the Fifth Circuit does,” he said.

The cases are Danco Laboratories v. Alliance for Hippocratic Medicine, U.S., No. 22A901 and FDA v. Alliance for Hippocratic Medicine, U.S., No. 22A902.