Supreme Court justices are slated to delve into disputes surrounding abortion during their final session this year, revealing the legal battlefronts forming in the wake of the high court’s stunning decision that overturned Roe v. Wade.
Several key cases are headed to the justices. One is Idaho’s emergency request to fully enforce its abortion law, a ruling that is possible as soon as this week. At the justices’ Friday conference, they are scheduled to consider whether to take up an appeal seeking to overturn a Supreme Court precedent allowing laws that ban anti-abortion activists from approaching people outside abortion clinics.
And at next week’s conference, the justices are slated to review whether to take up the dispute over the availability of mifepristone, the common abortion pill, which they will take up at a Dec. 8 closed-door conference.
Agreeing to hear that dispute would mark the highest-stakes abortion case since last year’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned decades of constitutional abortion protections.
In April, a Trump-appointed federal judge suspended approval of the drug, which is used in more than half of all abortions nationwide. The 5th U.S. Circuit Court of Appeals later ruled the pill, which was approved by the FDA in 2000, could remain on the market, but the panel upheld portions of the earlier decision, rolling back changes the FDA made since 2016, which eased access.
The 5th Circuit ruled the FDA acted improperly when it said mifepristone can be used up to 10 weeks of pregnancy rather than seven, allowed the medication to be mailed to patients, lowered the dosage and permitted providers other than physicians to prescribe the drug.
Now, the justices are scheduled to consider petitions to review that ruling from the Biden administration and Danco Laboratories, which manufactures the brand-name version of mifepristone.
The Supreme Court previously intervened in the case to maintain the status quo until any appeals are resolved.
The Biden administration said letting it stand would be an “unprecedented decision” that would call into question the FDA’s broader authority.
“If the portions of that order affirmed by the Fifth Circuit are now allowed to take effect, it would upend the regulatory regime for mifepristone, with damaging consequences for women seeking lawful abortions and a healthcare system that relies on the availability of the drug under the current conditions of use,” the Justice Department wrote in court filings.
The plaintiffs in the case — represented by Christian legal powerhouse Alliance Defending Freedom — have asked that, if the justices hear the appeals, they also take up the question of mifepristone’s original approval.
“FDA’s actions concerning mifepristone — spanning from the 2000 Approval to its most recent removal of safeguards — have consistently elevated politics above law, science, and safety,” they wrote in court filings.
In the matter of establishing abortion clinic “buffer zones,” the Supreme Court 23 years ago ruled 6-3 that the First Amendment permitted a Colorado law prohibiting anti-abortion activists from protesting or counseling within eight feet of someone entering an abortion clinic.
With most of those justices no longer on the bench, that precedent may now be on the chopping block.
Justice Clarence Thomas, who dissented, is the only justice who remains. He has long suggested the case, Hill v. Colorado, should be overruled, and his fellow conservatives who have since joined the bench have also cast doubts.
Joined by Trump-appointed justices Neil Gorsuch and Amy Coney Barrett, Thomas last year called the precedent an “erroneous decision” that now has a “defunct status.”
“Hill is an aberration in our case law,” Thomas wrote.
Months later, the Supreme Court’s majority opinion overturning abortion rights — signed by five conservatives — cited the case when arguing Roe “distorted First Amendment doctrines.”
Legislation limiting abortion clinic protests passed by Westchester County, N.Y., days after the high court overturned abortion protections now gives the justices an opportunity to overturn Hill once and for all.
Backed by various anti-abortion and religious freedom groups, Debra Vitagliano, a Catholic and “sidewalk counselor,” is urging the justices to take up her challenge to Westchester County’s law.
Her petition is scheduled for the justices’ conference Friday.
“That legislation has now reached this Court, having deprived many women of their right to receive petitioner’s lawful offers of help,” attorneys at the Becket Fund for Religious Liberty, which represents Vitagliano, told the justices.
“This Court should grant certiorari to overrule Hill, purge its First Amendment jurisprudence of the distorting effects of Roe and Casey, and return the public sidewalks to their rightful position as a place where citizens can peacefully exchange information and offer to help one another without fear of imprisonment.”
Outside of the justices’ normal docket, they are contemplating an emergency application from Idaho officials seeking to fully enforce their abortion “trigger law” that took effect after the Supreme Court overturned Roe.
Idaho’s near-total abortion ban establishes criminal penalties for doctors who perform the procedure, except when the doctor believes it is necessary to save the mother’s life.
The Biden administration sued over the law, arguing it is preempted by the federal Emergency Medical Treatment and Labor Act. The administration has interpreted the law to protect providers who perform life-saving abortion services in emergency situations, saying it takes precedence over state abortion bans.
Idaho’s attorney general and state legislative leaders, all Republicans, dispute the interpretation and are asking the Supreme Court to stay a lower ruling partially blocking the law. A similar case is ongoing in Texas.
The Justice Department is due to respond by Thursday afternoon, and a ruling could come as soon as late this week.