On the surface, abortion rights have fared well on the Supreme Court this term. Two weeks ago, the justices unanimously allowed the abortion pill to remain widely available. On Thursday, the court dismissed a case related to Idaho's strict abortion ban, which has had the effect of allowing emergency rooms in the state to perform the procedure when the patient's health is at risk.
But the two sentences were so technical as to be ephemeral. They seemed designed to avoid and delay, to put off a volatile topic, or at least beyond Election Day.
Some abortion rights advocates called these rulings Pyrrhic victories, fearing they would pave the way for further restrictions, either by the courts or by a second Trump administration.
In the case of Dobbs v. Jackson Women's Health Organization, the 2022 decision that overturned Roe v. Wade, the Supreme Court signaled that he was trying to get out of the abortion business. “The authority to regulate abortion must be returned to the people and their elected representatives,” Justice Samuel A. Alito Jr. wrote for the majority.
The two recent rulings have been generally consistent with that sentiment, although Justice Alito himself was eager to take up Thursday's case. “It appears,” he wrote, “the court has simply lost the will to decide the easy but emotional and highly politicized issue that the case presents. This is deplorable.”
The majority disagrees, but the evasion strategy cannot last, said Mary Ziegler, a law professor at the University of California, Davis.
“What is clear, both in this mandate and in what will likely come next, is that the fight for abortion is not left to the states,” he said. “The executive branch and the Supreme Court will still have a say.”
David S. Cohen, a law professor at Drexel University, said the end of Roe was the beginning of a war in which each side seeks total victory. This means, he said, that the Supreme Court will not be able to avoid difficult questions in the long term.
“In both of these cases,” he said of this month's decisions, “the court avoided addressing the quagmire created by the overturning of Roe v. Wade. Without a national right to abortion, controversial cases like these will return to court again and again. The Court will not be able to escape its self-imposed mess forever.”
He added: “Neither side in this debate will stop fighting for its preferred outcome: a nationwide rule that applies everywhere. So there is no doubt that in the coming years we will see more and more cases like this one reach the Supreme Court.”
The two sentences solved almost nothing.
The first simply asserted that the specific doctors and groups who challenged the Food and Drug Administration's approval of the abortion pill had not suffered the kind of harm that would give them the right to sue. The court did not rule on whether the agency's action was legal.
Other challengers, notably three states that have already intervened in the court case — Idaho, Kansas and Missouri — will continue to fight. Their challenge could reach the Supreme Court fairly quickly.
The Idaho case was even more of a non-event. The court, which had made the unusual decision to agree to review a lower court's ruling before an appellate court acted, thought it wise not to get involved so early.
The court dismissed the case as “suddenly granted,” the judicial equivalent of saying “it doesn't matter.” After the ruling by the appeals court, the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court could return to the case.
Or it could hear an appeal involving a substantially similar Texas law that was upheld by the Fifth Circuit. The Biden administration has already filed a petition seeking a review of that ruling.
“Both decisions strike me as Pyrrhic victories for the Biden administration,” Professor Ziegler said. In the abortion pill case, Food and Drug Administration v. Alliance for Hippocratic Medicine, he said, the court interpreted the protection of the conscience of doctors opposed to abortion much more broadly than it had in previous decisions.
In the emergency abortion case, Moyle v. United States, Professor Ziegler said that Judge Amy Coney Barrett “touched on the importance of conscience protections and expressed suspicions about mental health justifications for abortion, both which could have consequences in the future.”
Rachel Rebouché, dean of Temple University's Beasley School of Law, said that “these decisions cannot be described as pure victories for abortion advocates.”
“The issues at the heart of both cases will certainly come back before the court,” he said. “The court did not rule on the merits of either decision, and there are already cases in the pipeline to test the legality of mail-in medical abortion and to uphold state abortion laws that make no exceptions to avoid serious injury or threats to health”.
The upcoming election may have played a role in the Supreme Court's failures. After all, the Dobbs ruling, issued months before the 2022 midterm elections, was a political windfall for Democrats.
Greer Donley, a law professor at the University of Pittsburgh, said the court's conservative majority may have wanted to avoid “an unpopular merit-based abortion decision in an election year.”
Professor Ziegler said she was unsure how the election factored into the court’s calculations.
“It would have been extraordinary for the Court to issue two major decisions in an election year, and it is fair to assume that the Court’s more institutionalist justices were looking for a way to avoid that outcome,” he said. “At the same time, in both cases there were real reasons to delay the decision on the merits.”
He added: “That means there’s no clear evidence that this is an election-year about-face – after all, why address these cases in an election year in the first place? – but it seems quite likely that the upcoming election has made it even more attractive to kick the can down the road.”
If Trump wins, much of the controversy in the two cases could be resolved with executive action. His administration could roll back the emergency room care guidelines at issue in the Idaho and Texas cases, and it could interpret an old law, the Comstock Act, to try to ban the mailing of abortion pills.
Yet whatever one might say about the direction of the Supreme Court's abortion jurisprudence, Professor Cohen said, it is important not to lose sight of who won and who lost in the two recent decisions.
“The anti-abortion movement made great strides with these cases and failed in both,” Professor Cohen said. “They failed to stop abortion pills, nor to prevent federal law from overriding state abortion bans. That may change in the future, but right now they are 0-2 behind Dobbs.”