WASHINGTON — When the Supreme Court struck down the landmark ruling on abortion rights Roe v. Wade last summer, the judges were silent on the legality of all methods of terminating a pregnancy.
If a woman was looking to use pills or undergo a surgical procedure it simply wasn’t a problem. But they made it clear that women across the country no longer had the federal constitutional right to abortion.
“It is time to pay attention to the Constitution and return the issue of abortion to the elected representatives of the people,” Conservative Justice Samuel Alito wrote for the majority in Dobbs v. Jackson Women’s Health Organization, leaving it to state legislators or the federal government to restrict or allow abortion.
The court may soon have a chance to say more.
A case originating in Amarillo, Texas, could provide the first meaningful test of whether or not the justices want to go much further than just throw out Roe. It can test whether the conservative majority meant what they said or will seek to further sway national policy on one of the most contentious issues in American politics by allowing more restrictions on abortion.
On Friday, access to mifepristone, a pill used as part of the most widely used two-drug protocol for medical abortion in the United States, was thrown into legal purgatory.
U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, nationwide suspended the original Food and Drug Administration approval of mifepristone 23 years ago.
No doubt knowing the decision would be hotly contested, he put his order on hold, giving the Biden administration a week to appeal before it goes into effect.
Then, in less than 30 minutes, another US district judge in Washington state, Thomas Rice, a former President Barack Obama appointee, said the opposite: He ordered the FDA to maintain the «status quo» regarding to the availability of the drug. However, Rice’s order does not apply nationwide: it was limited to the 17 states and the District of Columbia that filed the lawsuit.
That puts the FDA in a difficult position with two directly conflicting orders, at least in those states, which could lead to a dispute for judges to decide.
Within hours of the Kacsmaryk decision, the Department of Justice promptly filed a notice of appeal in the US Court of Appeals for the 5th Circuit to remain in circulation while the lawsuit proceeds in court.
The Fifth Circuit is one of the most conservative in the country, with six judges who were also appointed by Trump; the panel hearing the Justice Department’s request in this case would be randomly selected.
If the Biden administration loses its appeal and Kacsmaryk’s order goes into effect Friday, mifepristone will become an unapproved abortion drug.
The government could then go to the Supreme Court, where it would need five votes to block Kacsmaryk’s decision. The nine-judge court has a 6-3 conservative majority.
The court’s conservative majority has issued a series of dramatic and consequential decisions in the three years since conservative Justice Amy Coney Barrett, one of three Trump appointees, replaced the late liberal Justice Ruth Bader Ginsburg.
Dobbs’ decision was the most significant, but there have been other major rulings, including expanding religious freedom and gun rights, as well as a decision last year limiting the federal government’s power to combat climate change.
On abortion, the votes of Justice Brett Kavanaugh, who had a majority in Dobbs, and Chief Justice John Roberts, who voted against unseating Roe, would be critical. Kavanaugh wrote separately in Dobbs, calling into question, at least on paper, some of the more extreme arguments advanced by abortion advocates, including that the Constitution prohibits abortion, but it’s unclear how he would rule on the authority of the Constitution. FDA to approve mifepristone.
“Because the Constitution is neutral on the issue of abortion, this Court must also be scrupulously neutral. The nine unelected members of this Court do not possess the constitutional authority to overturn the democratic process and enact a pro-life or pro-choice abortion policy for the 330 million people in the United States,” Kavanaugh wrote.
Roberts joined his conservative colleagues in defending a Mississippi law banning abortion after 15 weeks, but opposed repealing Roe, saying abortion rights should have been construed as guaranteeing «a reasonable opportunity» to choose terminate a pregnancy. His vote suggests that he has little desire to restrict abortion rights beyond what has already been limited.
While court observers are skeptical that enough justices will allow Kacsmaryk’s decision to take effect, uncertainty remains.
“My personal opinion is that the DOJ [Department of Justice’s] the legal arguments are strong, but the Supreme Court can be quite hard to predict… so I don’t feel like anyone can have a high degree of certainty about the outcome of this case,” said Adam Unikowsky, a lawyer who has argued cases. in court and clerked for Conservative Justice Antonin Scalia.
Kacsmaryk, who was a conservative legal activist before being appointed to the federal court, he infused Friday’s ruling with flashy rhetoric about abortion and questioned evidence about the safety of mifepristone. But the legal issues raised in the case are not limited to abortion; rather, they are dry issues related to FDA approval of drugs, who can challenge those approvals, and how and when those challenges can be brought.
Jonathan Adler, a professor at Case Western Reserve University School of Law in Cleveland, said the case does not raise fundamental constitutional issues.
“People want to talk about this as an abortion case, but there are multiple threshold legal issues that have nothing to do with abortion,” she said.
So even if the case makes it to the Supreme Court, the vote breakdown in Dobbs may not indicate much about what the justices will do.
The Biden administration has made it clear that it sees the Texas case as about more than just abortion, as Kacsmaryk’s reasoning, if upheld, could open the door to all sorts of long-established drug legal challenges.
«When you turn the entire FDA approval process upside down, you’re not just talking about mifepristone,» Xavier Becerra, Secretary of Health and Human Services. said Sunday on CNN. “You’re talking about all kinds of drugs. You’re talking about our vaccines. You’re talking about insulin. You’re talking about the new Alzheimer’s drugs that may appear.»
If the Justice Department wins in the Fifth Circuit, there would be no need to seek Supreme Court involvement at this stage, but the coalition of anti-abortion groups and doctors that brought the Texas case could ask the justices to lift the stay. To do so, they would also need to win five votes, which legal experts say would be unlikely.
The Department of Justice may also have another strategic option. You could ask the Supreme Court for the opportunity to fully brief and argue the case on the merits for a final decision instead of waiting for the full appeals process to unfold.
Took that approach in 2021, when the Biden administration challenged a Texas law, enacted before Roe was struck down by the Supreme Court, to almost completely ban abortion and evade judicial review. The judges allowed the law to remain in effect in a related case and fired the case brought by the Department of Justice.
Laura Jarrett reported from New York and Lawrence Hurley from Washington.