This is the most important moment at the U.S. Supreme Court for abortion rights since the justices decided in late April to keep the medication abortion drug mifepristone available on current terms while a case challenging the drug’s approval makes its way through the courts.
Two post-Roe cases are being considered at the Supreme Court currently that raise key questions about federal law and the Biden administration’s powers to protect abortion access after Roe. The justices are being asked to hear appeals related to the mifepristone case — a challenge to the U.S. Food and Drug Administration’s approval of and access to the medication abortion drug — and to consider a request relating to the Biden administration’s application of the Emergency Medical Treatment and Active Labor Act (EMTALA) to abortion-related care.
Notably, the far-right Christian legal advocacy group Alliance Defending Freedom is at the court in both of these matters, having brought the mifepristone case on behalf of anti-abortion medical groups and recently having taken up representation of the state of Idaho against the Biden administration in the EMTALA case.
The Supreme Court’s 2022 decision overturning Roe v. Wade ended the constitutional right to an abortion, but it did not merely — as popular parlance would have it — “send the matter back to the states.” Although the decision certainly gave states authority to act where Roe had prevented restrictions previously, Justice Sam Alito’s opinion for the court in Dobbs v. Jackson Women’s Health Organization stated that “the authority to regulate abortion must be returned to the people and their elected representatives.”
That includes Congress and, from there, the executive branch in implementing federal law.
The mifepristone petitions
On Friday, the justices are due to consider at their private conference whether to hear any or all of a trio of cert petitions relating to the closely watched mifepristone case out of Texas.
After U.S. District Judge Matthew Kacsmaryk in April purported to halt the 2000 approval of the medication abortion drug and subsequent loosening of restrictions on its use, the Supreme Court ultimately put that ruling on hold until the high court had a chance to review the case. Over the summer, the U.S. Court of Appeals for the Fifth Circuit ruled that the challenge to the 2000 approval was untimely, but the appeals court would — agreeing with Kacsmaryk — block the FDA’s decisions easing access to the drug since 2016.
The Biden administration and Danco Laboratories, the maker of Mifeprex, asked the justices to take up the case — on standing grounds and as to the decision on the loosening of the restrictions. The anti-abortion medical group challengers filed a “conditional cross-petition for a writ of certiorari,” arguing that, if the court takes up the Justice Department or Danco case, it also should take up arguments on the 2000 approval.
The court is considering all three petitions this Friday, although a decision could, under Supreme Court practice in recent years, not come until after the justices have considered the case in a second conference. (There also is the side-question of what effect the sought intervention of a trio of state attorneys general at the district court in the case will have on the Supreme Court’s consideration of these petitions.)
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