During the 2024 term, the US Supreme Court ruled on two pivotal cases affecting access to abortions: FDA v. Alliance for Hippocratic Medicine (the Mifepristone case) and Moyle v. United States (the Emergency Medical Treatment and Labor Act case). Dismissing both cases on procedural grounds, the right-wing majority of the Supreme Court aimed to keep abortion off center stage during the 2024 presidential election. However, these are short-lived reprieves in the anti-choice movement’s long war to ban abortions.
THE MIFEPRISTONE CASE
Approved by the FDA in 2000, medication abortions in the US involve two drugs – mifepristone, which halts the hormone progesterone necessary for pregnancy maintenance; and misoprostol, which induces uterine contractions to expel its contents – which are taken within the first 10-11 weeks of pregnancy.
While it is perfectly safe to take abortion pills at home, supervised or self-managed, the FDA initially required women to take them in a doctor’s office. Beginning in 2016, the FDA began relaxing its restrictions, today allowing a doctor’s visit by telemedicine, and abortion pills to be mailed to a woman.
Since FDA approval over 20 years ago, mifepristone has been used by over 5.9 million people in the U.S. And since the Dobbs decision in June 2022, abortion pills have been a lifeline for people seeking to end their pregnancies, even in legal states where clinics are overloaded. By 2023, nearly 63% of all abortions, about 642,700, were medication abortions.
Looking to ban abortions, in FDA v. Alliance for Hippocratic Medicine, anti-abortion doctors and dentists challenged the FDA’s loosening in 2016 and 2021 of how mifepristone/misoprostol are administered. Since the anti-abortion doctors couldn’t prove harm from the FDA’s decisions, the Supreme Court Justices found unanimously that this group lacked standing – the legal right to sue.
Thus, for now, medication abortion remains legal in 36 states, with about half still requiring a physician to administer the pills. It is illegal in the 14 states that have totally banned abortions without exceptions for rape, incest, or the health of the pregnant person.
Ongoing Legal Challenges
But the fight isn’t over. During oral arguments, Justice Alito suggested the anti-abortion group find better plaintiffs to pursue the case. Heeding this call, Attorneys General from Kansas, Idaho, and Missouri are gearing up to make it illegal for doctors, pharmacies, and other organizations to mail abortion pills to individuals living in states with strict bans.
At the state level, conservative legislators are pushing to restrict access to abortion pills. For instance, Louisiana recently classified mifepristone and misoprostol as controlled substances, and Arkansas is trying to limit access to information on obtaining abortion pills.
Project 2025
In addition to legal challenges and state restrictions, as outlined in Project 2025, abortion opponents are already planning to institute a nationwide abortion ban during the next Republican administration.
Spearheaded by the Heritage Foundation and written by Trump allies and former members of the Trump Administration, it calls for the FDA to reverse its 24-year-old approval of mifepristone, labeling abortion pills as “the single greatest threat to unborn children post-Roe;” and seeks to halt mail-order abortion drugs, citing “long-standing federal laws” (the Comstock Act) that prohibit sending them through the mail.
The Comstock Act of 1873
Championed by Anthony Comstock, an evangelical zealot who viewed punishing women for their sexuality a form of divine retribution, the 1873 Comstock Act banned using the US postal system to send “obscene” materials, which it defined to include sex-education materials, contraceptives, and abortion-inducing substances.
Although rarely enforced today, the Comstock Act remains current law despite recent Democratic Party efforts to repeal it. If reactivated, it would de facto ban all abortions in the US, and criminalize sending abortion pills through the mail, as well as materials used in surgical abortions, such as dilators, suction catheters, gloves, and speculums.
In addition to Project 2025, Justices Thomas and Alito reignited discussions during oral arguments of the mifepristone case about the Comstock Act’s relevance. They were particularly interested in the Act’s potential enforcement for the distribution of mifepristone. Alito notably described the Comstock Act as not obscure but a “prominent” law.
What Now for Abortion Pills?
As medication abortions have become an increasingly common method of ending a pregnancy, and in many cases, the only choice, the anti-choice movement intends to criminalize the process of supplying abortion pills to women who need them.
Despite the current Justice Department’s position that the 1873 Comstock Act does not apply to the mailing of abortion drugs, anti-abortion advocates are determined to reinterpret the law to align with their agenda to ban abortions nationwide.
Physicians, lawyers, activists, and reproductive justice organizations will continue to move heaven and earth to help birthing people living in states with severely restricted and total abortion bans gain access to the abortions they need. It is up to us to do our part – vote in 2024 for representatives and judges who support women’s reproductive freedom.
THE EMERGENCY ABORTION CARE CASE
The Emergency Medical Treatment and Labor Act (EMTALA) of 1986 mandates that hospitals receiving Medicare funds provide necessary stabilizing treatment to anyone, regardless of insurance status or ability to pay. In July 2022, after the Dobbs decision, the Department of Health and Human Services reminded hospitals of their EMTALA obligations, including providing emergency abortions despite state laws.
Legal Challenges
In August 2022, in response to Idaho’s law banning abortions, the US Department of Justice (DOJ) sued Idaho to protect emergency abortions under EMTALA. It asked for an injunction to prevent the Idaho law from going into effect while the case was pending, which The District Court and 9th Circuit granted. But Idaho appealed to the Supreme Court. Upon deciding in January 2024 to review Moyle v. United States on an expedited basis, the Supreme Court blocked the injunction, allowing Idaho’s strict abortion ban to take effect during its deliberations.
On June 27, 2024, almost the end of the 2024 term, the Supreme Court dismissed Moyle v. United States, deciding it was “improvidently” – mistakenly – granted. The Court chose not to rule on the case’s substance, saying it had prematurely accepted the case before the Ninth Circuit had an opportunity to deliberate and rule on it. Now, Moyle v. United States returns to the Ninth Circuit for a decision, delaying an inevitable review by the Supreme Court.
Wanting to address the issues raised in the case, four justices — Thomas, Alito, Gorsuch, and Jackson — dissented, albeit for different reasons. Alito, supported by Thomas and Gorsuch, argued that EMTALA doesn’t override state laws and that hospitals must “protect the health of both a pregnant woman and her ‘unborn child.’” To honor this obligation, hospitals “must treat, not abort the ‘unborn child.” This argument grants to fetuses rights equal to the rights of a pregnant person; thus, for Alito and his co-dissenters, no federal law protects abortion access, and the Court should have decided as such.
In contrast, Justice Jackson argued that federal law clearly protects patients needing abortion care, and not saying so puts people in danger: “Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho’s law is preempted.” Jackson criticized the Supreme Court for not addressing this critical issue, leaving pregnant patients in Idaho and other states without explicit protections for emergency abortion care.
Stay and Dismissal Facilitate Suffering
Although Justices Gorsuch and Jackson had dissented for opposite reasons, they agreed to join the five other Supreme Court justices in the decision to lift the stay of the preliminary injunction, thus allowing abortions in Idaho on an emergency basis while the Ninth Circuit reviews Moyle v. United States.
That stay, from January 5th to January 27th, however, had caused unnecessary suffering for pregnant people needing urgent medical treatment. Eight medically fragile women had to be airlifted out of Idaho to get necessary abortions.
In Texas, the Fifth Circuit Court has ruled that Texas’s abortion ban overrides EMTALA, forcing pregnant individuals facing severe medical crises to leave the state for care. While the Department of Justice has appealed this decision, the Supreme Court has not decided whether to review the case.
Beyond Idaho and Texas, the unresolved tension between federal and state laws on emergency abortion care has severe impacts on the health and rights of many birthing people. In at least six states with abortion bans without exceptions for the health of pregnant individuals, when complications arise, they face potentially dire results, such as coma, stroke, limb amputation, hysterectomy, organ failure, loss of fertility, and death.
WHAT NEXT AFTER BOTH ABORTION CASES?
So, it is true that there is no national ban on the use or mailing of mifepristone. And yes, for the moment, pregnant persons in Idaho facing severe health consequences can obtain an abortion.
However, the extreme right majority in the Supreme Court in each case has failed us. As Justice Jackson urgently stated, “And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price. Because we owe them — and the Nation — an answer to the straightforward pre-emption question presented in these cases, I respectfully dissent.”
By using procedural grounds to avoid ruling on access to mifepristone in FDA v. Alliance for Hippocratic Medicine, and on emergency abortion care as mandated by EMTALA in Moyle v. United States, the Supreme Court lowered the notoriety of abortion in the upcoming election. However, these issues are going to make their way back to the courts, underscoring how crucial the next election is to the future of abortion access.
As you prepare for the 2024 election cycle, vote for representatives and judges who support women’s right to live in America as equal citizens.
