January 11, 2024

SCOTUS To Take Up Abortion, Again

Russ Feingold President

The Right packed the Supreme Court to do its bidding, no more so than on the issue of abortion. The Court’s conservative supermajority readily complied, overruling Roe v. Wade less than two years after the Right secured its supermajority with the confirmation of Justice Barrett. Now, for the first time since Dobbs, the Court is poised to take up the issue of abortion again, with the same conservative supermajority in control of the outcome.

For the past year and a half, the decision in Dobbs has brought devastation and confusion for thousands, with certain states doing everything they can to restrict access to abortion. States have passed a myriad of abortion bans with narrower and narrower exceptions. Idaho has led this charge, drafting a dangerous and draconian abortion ban with the slimmest of exceptions.

Idaho’s “Defense of Life Act” bans all abortion services except when an abortion is “necessary to prevent the death of the pregnant woman.” This goes far beyond other states’ laws that make exceptions to abortion restrictions for the life and health of the pregnant person. In Idaho, it is not enough that the health of the pregnant person be endangered by continuing a pregnancy. The very survival of the pregnant person must be on the line before a doctor is permitted to provide necessary abortion services.

This month, the Supreme Court agreed to hear two cases challenging the Idaho state law. While oral argument will not take place until April, the Court’s supermajority may have already tipped its hand by allowing the Idaho law to take effect while the Court considers the case. It’s not dispositive that the Court will rule in favor of Idaho, but it is alarming.

The question in the two combined cases is whether the Idaho state law conflicts with the federal Emergency Medical Treatment and Labor Act (EMTLA). Under the EMTLA, hospitals are required to provide “necessary stabilizing treatment” to pregnant patients whose health is at risk. This includes providing abortion services when such services are needed to protect the health of the patient. Idaho’s law directly conflicts with this by permitting abortion only to save the life and not the health of the pregnant person.

The Idaho cases bring the possibility that states will be permitted to not only ban nearly all abortion services, but to select which specific medical conditions are deemed dire enough to permit a doctor to perform an emergency abortion. State legislatures could be permitted to put pregnant peoples’ health in danger with no recourse unless the person is able to flee the state to seek medical care elsewhere. The wellbeing of pregnant people is being sacrificed on the altar of political extremism.

Even in states with slightly less draconian laws than Idaho, we are seeing patients denied medical care and hospitals refrain from providing care in cases that do not squarely fit within whatever limited exception is included in state law. Recently in Texas, a woman was denied medical care despite receiving a lethal fetal diagnosis. This is in a state wherein the ban on abortion has an exception for medical emergencies. But, the law’s wording has left hospitals and providers to determine what constitutes a medical emergency – not in their expert opinion but in the opinion of a state that will retaliate if it disagrees with the hospital’s conclusion. This climate of intimidation and retaliation results in even fewer patients receiving the care they need. And yet, we can expect many states to adopt Idaho’s even stricter law if the Court blesses it.

The Idaho cases are in addition to the Fifth Circuit case that the Supreme Court agreed to take up at the end of last year regarding Mifepristone, one of the two most commonly used drugs in medication abortion. Unlike with the Idaho cases, the Court stayed the Fifth Circuit’s decision while it considers the case, meaning that Mifepristone remains available under existing federal law.

Dobbs was unprecedented. Never before had the Supreme Court taken away a federal constitutional right. While the Supreme Court was already facing a legitimacy crisis before Dobbs, public confidence in the Court has cratered to historic lows since the decision came down in 2022. The public no longer sees a Court committed to defending their fundamental freedoms and the rule of law, but a third political branch intent on advancing a partisan agenda. This legitimacy crisis will only deepen with each new extremist, partisan decision the conservative supermajority hands down.

This Court must be reformed if its legitimacy is to be restored and the public is again to trust the federal judiciary in protecting our fundamental freedoms. Reform includes adding seats to redress the Right’s packing, ending life tenure for justices in favor of term limits, establishing a binding code of ethics, amongst other reforms.

While we continue to advocate for these comprehensive reforms, I want to underscore that our advocacy is already having an impact. We know our voices are being heard. The Senate has stepped up its oversight of the Court and launched investigations into the unethical behavior of certain justices. The justices felt the need to issue their own code of conduct. While insufficient in several respects, the code was proof that the justices are not immune to public pressure. As we track the abortion cases heading to the Court, we will continue to shine a spotlight on this Court’s existential legitimacy crisis. We will not accept a status quo in which our fundamental freedoms are subject to the whims of a Court packed to issue extremist, partisan decisions.