The majority-conservative Supreme Court ruled to maintain abortion access in the two biggest abortion cases since the overturning of Roe v. Wade. But the decisions are just “temporary” victories ahead of an election where the issue is top of mind for voters, Democrats told NOTUS.
“The court is kicking the can down the road, and I wouldn’t be surprised if they’re kicking it down the road to get through the November election,” Rep. Kathy Manning, who is leading House Democrats’ efforts to protect contraception, told NOTUS. “And I find that appalling.”
The justices dismissed two cases related to abortion: one that sought to reimpose restrictions on abortion pills and a second, on Thursday, that looked to prohibit abortions in emergency cases. Both dismissals were based on procedural grounds rather than on the merits of the cases themselves, meaning the issues could wind up back at the Supreme Court — and with very different outcomes for abortion rights.
With the election months away and many national Republicans eager to distance themselves from hard-line abortion bans, Democrats are trying to remind voters that abortion access remains at risk.
“I definitely think it’s temporary,” Rep. Judy Chu, author of the Women’s Health Protection Act, said of the Supreme Court relief on abortion access. “What I am concerned about is [the justices] putting this off until the November election. They know how potent this issue is. … Even Trump is backing off from making this a banner-waving type of issue.”
Thursday’s decision in Idaho v. United States allows emergency abortion care to take place in Idaho for now despite the state’s near-total abortion ban, which says that the procedure is only allowed to prevent a patient’s death. The state challenged the Biden administration’s interpretation that the Emergency Medical Treatment and Active Labor Act, or EMTALA, preempts the ban’s strict exceptions to allow abortions when a patient’s health is in danger.
The Supreme Court ultimately dismissed the case in a 6-3 unsigned opinion that was briefly published on the court’s website on Wednesday. The majority reasoned that the court should not have opted to consider the case before the lower courts issued a decision.
The justices “are basically punting until it comes back because there were many changes … after the litigation commenced. So they want the case to develop a bit more before they can fully address the issues presented,” Andrew Twinamatsiko, a director of Georgetown Law School’s O’Neill Institute Health Policy and Law Initiative, told NOTUS.
Justice Ketanji Brown Jackson called out her colleagues for “punting on this issue” in a partial dissent. She also implied that timing may have been a factor in the ruling.
“Will this Court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time?” she wrote.
She noted that the 5th Circuit Court of Appeals — which is majority-conservative — is currently considering another case related to EMTALA.
President Joe Biden released a statement shortly after the decision was issued highlighting that the threat against abortion rights was not over: “[T]his is all part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide, and put women’s health and lives at risk.
The abortion pill case — Food and Drug Administration v. Alliance for Hippocratic Medicine — was dismissed earlier this month because the anti-abortion groups that brought the case lacked standing, Justice Brett Kavanaugh wrote in the court’s opinion.
Democratic lawmakers warned at the time that while that ruling preserved access to medication abortion, the pills could still be under threat in the future, particularly considering several red states have shown interest in challenging the FDA’s approval of mifepristone. They warned against complacency again this week.
“Any time that the Supreme Court isn’t jeopardizing women’s reproductive rights, I would call it a victory. It does raise some questions about whether the political climate is such that they’ve decided they need to pull back,” Rep. Mary Gay Scanlon said. “We’re quite sure that the far right wants to keep revising it until they get the result that they want.”
Skye Perryman, president and CEO of Democracy Forward, which represented the American College of Obstetricians and Gynecologists in the emergency abortions case, said that “both opinions leave open the significant possibility” that the court will revisit abortion issues in a future term, particularly since there are already similar cases moving through lower courts.
Increasing access to abortion rights has been a major talking point for Democrats ahead of the November presidential elections. A recent Gallup poll found that “a record-high 32% of U.S. voters say they would only vote for a candidate for major office who shares their views on abortion.” Most of those voters, the poll found, identified as “pro-choice” — signaling some trouble for Republicans running in vulnerable districts and states.
The GOP overall has changed its messaging strategy around abortion several times in an effort to distance its candidates from the issue.
Abortion rights advocates say they and Democratic candidates must work to educate voters about the continued threat to abortion access since the direct impact is not as obvious as the Dobbs decision was two years ago.
“For candidates, you know, you need to actually connect the dots for voters,” said Ryan Stitzlein, vice president of political and government relations for Reproductive Freedom for All, the organization formerly known as NARAL.
Overall, though, “we’re not celebrating this decision by any means,” Stitzlein added. “[The justices] did the bare minimum that they could have done here and … all it does is maintain the status quo of uncertainty, which is harmful to people’s lives.”
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Oriana González is a reporter at NOTUS.