Post-Dobbs, the Supreme Court Reenters the Abortion Debate

Almost a year and a half after the Supreme Court overturned Roe v. Wade, ending the decades-long constitutional right to abortion, SCOTUS has reentered the abortion debate by agreeing to review a Fifth Circuit Court of Appeals decision in the case Alliance for Hippocratic Medicine v. FDA that would make mifepristone less accessible.  Mifepristone is one of the two pills commonly used in a medication abortion – currently the most common method of abortion in the United States.  If SCOTUS upholds the appellate ruling, the Court would cut off access to the drug through the mail and impose other restrictions, such as shortening the time during which mifepristone can be used from the current ten weeks of pregnancy to seven weeks.  These restrictions would apply even in states where abortion remains legal.

Alliance for Hippocratic Medicine v. FDA began with U.S. District Judge Matthew Kacsmaryk’s initial ruling in April 2023 that the FDA “exceeded its authority” in approving mifepristone based on the agency’s use of an accelerated approval process meant for drugs intended to treat “life-threatening diseases” and because the drug does not provide a “meaningful therapeutic benefit” for patients.  It is unprecedented for a judge with no medical or scientific expertise to attempt to find a drug unsafe despite the FDA’s approval.  The DOJ appealed the decision to the Fifth Circuit Court of Appeals, which issued an order in August 2023 finding that mifepristone should remain legal in the United States but with significant restrictions on patients’ access to it.  Such restrictions include prohibiting the pill from being sent through the mail or prescribed through telemedicine, effectively rolling back years of regulations and medical consensus demonstrated by the FDA’s decision-making process and making abortion even harder to access.

The Biden Administration welcomed the Supreme Court’s intervention.  White House Press Secretary Karine Jean-Pierre stated that the lower court ruling under review “threatens to undermine the FDA’’s scientific independent judgment and would reimpose outdated restrictions on access to safe and effective abortion medication.”  SCOTUS will hear oral arguments early next year, with a ruling due by the end of June.  While this dispute doesn’t directly address the right to abortion, instead focusing on different legal issues about the FDA’s process for approving drugs, the case raises questions about the Court’s pledge to leave abortion policy to the states and federal government.

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, there has been a flurry of activity concerning abortion rights in each state.  Based on data from the Center for Reproductive Rights, fourteen states made abortion illegal in the year following the Dobbs decision.  Ten states are considered “hostile” toward abortion rights, which the Center for Reproductive Rights interprets as meaning that the states have expressed a desire to prohibit abortion entirely.  Three states are categorized as “not protecting” abortion, meaning that abortion may continue to be accessible, but would be unprotected by state law.  Twelve states have protected abortion, meaning that the right to abortion is protected by state law, though there are limitations on access to care. 

On the brighter side, eleven states, including New York, have expanded access in the year following Dobbs, meaning that the right to abortion is protected by state statute or constitution, and other laws and policies have created additional access to abortion care.  In 2019, New York enacted comprehensive abortion rights legislation, and in 2022 enacted additional protections for abortion providers and helpers.  In October of this year, New York City rolled out a vast telehealth abortion service administered by the city’s public hospital system, which makes medication abortion pills available through the mail to anyone in the five boroughs who needs this care.

We have seen in the news the enormous toll that laws restricting abortion access can take on the lives of women and their families.  In some instances, women carrying fetuses with fatal abnormalities have been barred from having an abortion in their home states.  A Florida woman carried to term a baby who had no kidneys, dying in her arms shortly after he was born.  At 24 weeks, the ultrasound had shown Deborah Dorbert that the fetus did not have kidneys and was sure to die, and that Dorbert had hardly any amniotic fluid and was at especially high risk of preeclampsia, a potentially deadly complication.  But it was too late to terminate the pregnancy in Florida, where abortions after 15 weeks are banned.  Dorbert’s only options were to go out of state to get an abortion or to carry the baby to full term, and she and her husband didn’t have the money to travel.

Other women have had potentially life-threatening pregnancies and have been unable to get an abortion, as medical exemption clauses are often vague and medical providers fear severe legal consequences.  Kate Cox has been battling the state of Texas to terminate her high-risk (but much wanted) pregnancy after Cox’s fetus was diagnosed with a rare and deadly genetic condition called trisomy 18, sometimes referred to as Edwards syndrome.  Trisomy 18 is a rare chromosomal condition that can cause heart defects and other organ abnormalities.  Almost all pregnancies end in miscarriage or stillbirth and of the fetuses that do survive a full-term pregnancy, no more than 10% survive past their first birthday.  Cox’s physicians informed her that their “hands are tied,” and she would have to wait until her baby dies inside her or carry the pregnancy to term, at which point she would be forced to have a dangerous, third cesarean section before watching her baby suffer until the time at which it passes.  Carrying this pregnancy to term would also threaten Cox’s life and her future fertility.  Cox and her physicians sued the state of Texas to clarify the exceptions to the state’s draconian abortion ban.  The lower court judge granted Cox’s request, finding that Cox’s case fell into Texas’s narrow exception and that to prohibit her from having a much-needed abortion would be a “genuine miscarriage of justice.”  Texas’s attorney general immediately appealed the case to the Texas Supreme Court.  Hours before the Supreme Court handed down its ruling, Cox and her attorneys announced that she was leaving the state to seek an abortion elsewhere.  Needless to say, the Texas Supreme Court agreed with the attorney general and ruled against Cox, finding “[s]ome difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”

These are just a handful of examples of the people dealing with life-threatening pregnancies and/or potentially nonviable fetuses.  While there is no indication that the Supreme Court’s forthcoming decision on mifepristone will change the current landscape concerning the right to abortion, states – even those where abortion is protected – should be mindful of the potential effect of this decision and continue endeavoring to protect abortion access. We encourage the state and city of New York to continue to explore possibilities for broadening and further protecting abortion access here, as well as assisting pregnant people in states where abortion is limited or banned in obtaining necessary medical care here.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.