Supreme Court Punts Abortion Questions Until After Presidential Election

Plus: Why doesn't the Biden DOJ want to repeal the Comstock Act?

Taken in North Idaho during my reporting trip, back in October. This was the first snow of the season.

A truly historic (and I mean that in the most negative way possible) Supreme Court term ended today with the Court ruling that Donald Trump is largely immune from prosecution for actions he took on and around the January 6 insurrection.

Last week, the Court also trashed an important administrative law concept known as Chevron deference, under which federal courts previously deferred to federal agencies’ interpretations of regulations in the event of conflict. From now on, the power to interpret federal rules will lie with federal courts. And in another decision today, the Court significantly expanded the statute of limitations on such regulatory challenges.

If you thought gridlock in Congress was bad, just imagine the mess our federal government will be mired in now that every regulation is subject to challenge. And remember, those challenges will be adjudicated by a heavily right-leaning federal judiciary. (For great coverage of all these cases, I suggest Chris Geidner’s Law Dork newsletter.)

So, by comparison, the Court’s decisions related to abortion don’t seem so bad. At least, that’s what they want you to think.

Those abortion rulings? Not so great, actually

As I explained in my last newsletter, in mid-June the Court ruled in FDA v. Alliance for Hippocratic Medicine that anti-abortion doctors don’t have standing to sue the FDA over its approval of the medication abortion drug mifepristone. And last week, the Court dismissed the combined cases Idaho v. United States and Moyle v. United States, in which the central issue is whether a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA)—which requires hospitals to provide “stabilizing care” in emergencies—preempts Idaho’s abortion ban.

But in fact, the Supreme Court has allowed litigation to continue in both of these cases. In FDA v. AHM, three states have already been admitted as new plaintiffs in the district court. They are all but certain to resurrect this challenge, which could not only upend access to mifepristone, but undermine the FDA’s regulatory authority. (Something that, based on its recent administrative law decisions, the Supreme Court does not actually oppose.)

Similarly, in Idaho v. United States, the Supreme Court simply ruled that it “improvidently granted” review of the case. In other words, “Whoops, we took this case too soon.” While the Court’s decision does allow an injunction against full enforcement of Idaho’s abortion ban to go back into effect, allowing doctors there to provide emergency abortions without fear of prosecution—an undoubtedly good thing—the legal battle will continue. There are also six other states with abortion bans that violate EMTALA, and the ruling doesn’t apply to any of them.

This case, too, has tremendously broad implications when it comes to the right we all have to emergency medical care. And at least in Justice Alito’s eyes, it’s a potential route to establishing fetal “personhood.” These and more nuances explained here, in the piece I wrote for Rewire on the day of the ruling.

At best, the Supreme Court has punted both of these cases until after an election in which abortion is expected to be a major issue driving voter turnout. In the meantime, people living in the states that have banned or further restricted access to abortion since the Dobbs decision will continue to suffer in a climate of fear and confusion.

Justice Ketanji Brown Jackson may have put it best: “While this Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires,” she wrote in her dissent. “This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. 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.”

Time Zone Bridge, near Riggins, Idaho, where as the name suggests you cross from Pacific Time to Mountain Time. Some would also call this the border between North and South Idaho.

Catch up on my Idaho reporting

Since this case came out of Idaho, I’d be remiss if I didn’t plug the on-the-ground reporting I did there last fall. Idaho is not an outlier; it’s a preview of the conditions we could all be living under very soon. In Idaho, I encountered a pervasive culture of fear around pregnancy, and investigated the Christian nationalist takeover of government that produced it. But I also profiled the people fighting back against extremism. Those people have actually notched some impressive wins lately, including ousting 15 far-right incumbents in recent primary elections. As I always say, dismiss “red state” organizers at your peril. They’re our best, bravest, and most resilient, and we’ve all got a lot to learn from them.

The ghost of Anthony Comstock continues to haunt us

Finally, if you’ve been following my work this year you’ve heard me talk, over and over, about the Comstock Act. This not-so-dead 1873 anti-obscenity law remains one of the greatest threats to abortion and contraceptive access, as well as to all types of sexual expression and anything conservatives might deem “obscene.”

Democrats recently—finally—introduced a bill to repeal this law after more than a year of mounting pressure. The problem? First of all, it’s got no chance of passing. And second of all, it’s not a full repeal. I’ve got an inside source who tells me that the greatest obstacle to a true Comstock repeal was Joe Biden’s Department of Justice.

Why on earth wouldn’t the Biden administration want to repeal a law conservatives have said they’ll use to ban abortion nationwide? Learn more here.