The Supreme Court and Abortion: What Recent Decisions Mean for States

This year, abortion was back before the U.S. Supreme Court for the first time since the Dobbs decision. The two cases, FDA v. Alliance for Hippocratic Medicine and Moyle v. United States, centered around medication abortions and emergency abortions, respectively. In both cases, the Court refrained from making decisions based on the merits of either case, meaning abortion will continue to be contended in the states, especially on these issues. 

Medication Abortions: FDA v. Alliance for Hippocratic Medicine

Background

The U.S. Food and Drug Administration (FDA) approved mifepristone, one of the two drugs used in medication abortions, in 2000 with several regulations on the drug’s administration and use. The FDA loosened several of these restrictions in 2016, 2021, and 2023. The case, FDA v. Alliance for Hippocratic Medicine, originated from a challenge to the FDA’s approval of the drug by a group of anti-abortion doctors and medical groups. 

In April 2023, a federal district court judge in Texas suspended the FDA’s approval of mifepristone. Shortly thereafter, the case was appealed to the 5th Circuit Court of Appeals, which agreed to temporarily block the district judge’s suspension but allowed the original restrictions placed on the drug to go into effect. However, before that decision went into effect, the U.S. Supreme Court stayed the Court of Appeals decision and allowed mifepristone to stay available without added restrictions until the appeals process concluded. 

Supreme Court Decision

On June 13, 2024, the Court issued its opinion and unanimously decided to reject the case. The Court determined that the plaintiffs did not have standing in the case since they could not prove harm. The ruling maintains access to the drug but is significant because it leaves the door open for future challenges and will likely spur additional state legislative action on medication abortions. 

State Legislative Landscape for Abortion Medications

Medication abortion policy has evolved rapidly since the Dobbs decision. In Republican-led states, restrictions on access to medication abortions have been popular, and that is expected to continue. Last year, Wyoming became the first state to enact a law to specifically prohibit medication abortions. However, the law is currently under temporary injunction as a lawsuit against it proceeds. This year, Louisiana enacted legislation (LA SB 276) to classify both abortion medications – mifepristone and misprostol – as Schedule IV controlled dangerous substances. 

Meanwhile, Democratic-led states have attempted to protect access to medication abortion. In particular, several states have enacted “shield laws” that establish legal protections for providers offering protected reproductive health services, regardless of whether the patient is located in the state. This has been interpreted to allow providers to prescribe medication abortion via telemedicine and mail abortion medication to a patient in a state where abortion is banned. Massachusetts was the first state to adopt legislation to this effect in 2022 and five additional states enacted legislation last year. This year, Rhode Island (RI HB 7577/SB 2622) and Maine (ME LD 227) also enacted similar legislation. These laws, in combination with laws to restrict access to medication abortion, have created a complicated legal landscape that could result in additional challenges in the future. 

Emergency Abortions: Moyle v. United States

Background

In 2022, the Biden Administration sued Idaho in federal court, asserting that the federal Emergency Medical Treatment and Active Labor Act (EMTALA) preempted Idaho’s total abortion ban. Idaho’s abortion law bans all abortions with narrow exceptions for incest and rape and to prevent the death of the pregnant woman. Meanwhile, EMTALA requires hospitals with emergency departments to provide stabilizing care to patients with a medical emergency, which according to guidance issued by the Centers for Medicare and Medicaid Services (CMS) includes abortions. Under EMTALA, an emergency medical condition includes conditions that place an individual's health at risk, not only their life, which conflicts with Idaho law. 

In 2022, a district judge sided with the Biden Administration and issued a temporary injunction to allow emergency abortions to protect the health of the mother. In September 2023, a panel from the 9th U.S. Circuit Court of Appeals reversed the temporary injunction and allowed the full law to go into effect, but that decision was vacated by the full 9th Circuit a couple of weeks later.

Idaho challenged the circuit court’s decision to the U.S. Supreme Court and the Court granted the request through a procedure called “certiorari before judgment” which allows the Court to hear a case before it goes through the Court of Appeals. In addition, the Court also removed the temporary injunction and allowed Idaho to enforce its full abortion ban while the case proceeded. 

Supreme Court Decision

On June 27, 2024, the U.S. Supreme Court issued a decision to dismiss the case as improvidently granted. In the decision, the Court determined that it should not have agreed to expedite the case before it went through the appeals process. The decision sends the case back to the lower court and reinstates the temporary injunction blocking enforcement of the law in cases of medical emergencies. 

State Responses and Legislation on Emergency Abortions

While the Court’s decision allows access to emergency abortions in Idaho for the time being, the legal landscape surrounding emergency abortions remains complex across the country. Several states with abortion restrictions have exceptions for abortions performed in medical emergencies to prevent death or “substantial and irreversible physical impairment of a major bodily function.” However, bans in Arkansas, Mississippi, Oklahoma, South Dakota, and Texas only allow for abortions to prevent death (Wisconsin also has a similar law, currently on hold). The ruling has no impact on the enforcement of the ban in any of these states. In fact, Texas challenged EMTALA guidance in 2022 and a federal district court judge ruled that the requirements set forth in EMTALA do not conflict with the state’s strict abortion laws, allowing Texas’ full abortion ban to be in effect. 

There is also concern that the protections for emergency abortions under EMTALA are at risk. Even before the U.S. Supreme Court released its decision in the case, Illinois passed legislation (IL HB 581) to codify EMTALA protections and specifically defines required “stabilizing care” to include abortions. The bill currently awaits signature from Gov. Pritzker (D) and a similar measure was recently introduced in Pennsylvania (PA HB 2465).

Tracking State Health Care Legislation 

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