The Right to Abortion
Dobbs v. Jackson Women's Health Organization
On June 24, 2022, the US Supreme Court issued its final opinion in Dobbs v. Jackson Women’s Health Organization, ending nearly 50 years of a constitutionally recognized right to obtaining an abortion.
The Dobbs ruling overturns both Roe v. Wade and Planned Parenthood v. Casey, the landmark precedents guaranteeing a right to abortion.
The ruling, written by Justice Samuel Alito, holds that the US Constitution does not include an explicit right to abortion. The ruling further states that the right to abortion is not implicitly protected by the Constitution because “the right to abortion is not deeply rooted in the Nation’s history and tradition."
The ruling further holds that the “Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion” and therefore “returns that authority to the people and their elected representatives.”
Although the majority opinion claims that the “decision concerns the constitutional right to abortion and no other right,” the ruling’s rationale is that the right to an abortion is not “deeply rooted in history” and that rationale could certainly be said to apply to a host of other rights.
As stated in the dissent, “The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives]. So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid19th century are insecure… It is one or the other.”
Furthermore, the Justice Thomas concurrence states that what are known as substantive due process rights should all be eliminated, because he believes there is no such thing as substantive due process—this would include same-sex intimacy and marriage and the right to contraception laid out in Griswold v. Connecticut and Eisenstadt v. Baird.
Along with creating legal uncertainty on rights beyond abortion, the Court’s ruling has had devastating effects nationwide. Dobbs has resulted (as of October 2024) in abortion being completely banned in 13 states (these states have very limited exceptions). Another 8 states currently have some form of pre-viability ban, half of which ban abortion at 6 weeks of pregnancy. These bans have forced people to carry pregnancies against their will or to travel hundreds and thousands of miles to access abortion care or to carry pregnancies against their will. They have put the lives, health, and future fertility of pregnant patients at risk, and have even resulted in death.
Moyle v. United States
On June 27, 2024, the Supreme Court issued an unsigned opinion (called a “per curiam” opinion) in Moyle v. United States (and its companion case, Idaho v. United States), the case originally brought by the Biden administration to block Idaho’s abortion prohibition to the extent that it conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). The Supreme Court ruling dismissed the cases as “improvidently” (mistakenly) granted.
The Court had accepted Idaho’s petition for review before judgment, meaning the Supreme Court had agreed to hear the case early, before the case had been fully adjudicated in the lower courts. The June 27 ruling essentially said the Court shouldn’t have taken the case at this stage and sent the case back to the lower court to continue. Oral argument before the US Court of Appeals for the Ninth Circuit is scheduled for December 2024.
As part of its ruling, the Supreme Court also vacated the stay of a district court preliminary injunction (PI) it had previously granted. The PI had been in place for a year before the Supreme Court’s stay, meaning that pregnant people were able to obtain abortions in medical emergencies in Idaho. The stay had blocked the PI, allowing Idaho to enforce its abortion ban even where an abortion was necessary to preserve the patient’s health. Vacating the stay puts the PI back into effect.
The Moyle case has major implications for abortion access, but also has potentially significant implications for the concept of federal preemption (such as where a Title X requirement preempts a state prohibition). Idaho argues that, by enforcing EMTALA as preempting state law, EMTALA exceeds Congress’s Spending Clause power by seeking to enforce federal law against private (non-state) actors, and that the federal government is forcing the state to set aside its laws for a condition to which the state never agreed.
If the Supreme Court accepts even some portion of this argument about preemption and/or Spending Clause legislation, it could mean that the federal government could not fully enforce the conditions it sets for government programs where they should preempt state law. Specifically, it would hinder enforcement of spending clause conditions against private parties—including in Title X.
Food and Drug Administration v. Alliance for Hippocratic Medicine
On June 13, 2024, the Supreme Court issued its opinion in Food and Drug Administration (FDA) v. Alliance for Hippocratic Medicine, the challenge to the FDA’s approval of and rules concerning mifepristone.
A unanimous Supreme Court ruled that the original plaintiffs—some pro-life medical associations and individual doctors—did not have standing to challenge the FDA’s actions regarding the regulation of mifepristone. The Court therefore reversed the lower court ruling and mifepristone continues to be available for now.
This case, however, did not end with the Supreme Court’s ruling. On January 12, 2024, a federal district court granted a motion by three states (Missouri, Kansas, and Idaho) to intervene in the case. This means that while the case ended for the original plaintiffs because of the Supreme Court’s ruling, the case continues for the intervenor states and could well make its way back up to the Supreme Court.