WASHINGTON — When the Supreme Court overturned the landmark abortion rights ruling Roe v. Wade last summer, the justices were silent about the legality of all the various methods to end a pregnancy.
Whether a woman was seeking to use pills or undergo a surgical procedure simply wasn’t at issue. But they made it plain that women across the country no longer had a federal constitutional right to abortion.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” conservative Justice Samuel Alito wrote for the majority in Dobbs v. Jackson Women’s Health Organization, leaving it up to state legislators or the federal government to restrict or allow abortion.
The court may soon have a chance to say more.
A case originating in Amarillo, Texas, could provide the first meaningful test of whether the justices want to go much further than overturning Roe — or not. It may test whether the conservative majority meant what it said or whether it will seek to further influence national policy on one of the most contentious issues in American politics by enabling further restrictions on abortion.
On Friday, access to mifepristone, a pill that is used as part of the most commonly used two-drug protocol for medication abortion in America, was thrust into legal purgatory.
U.S. District Judge Matthew Kacsmaryk of Texas, an appointee of President Donald Trump, put a nationwide hold on the Food and Drug Administration’s original approval of mifepristone 23 years ago.
Undoubtedly, knowing the decision would be hotly contested, he put his order on hold, giving the Biden administration a week to appeal before it goes into effect.
Then, in less than 30 minutes, a different U.S. district judge, Thomas Rice, in Washington state, an appointee of President Barack Obama, said the opposite — ordering the FDA to maintain the “status quo” regarding the availability of the drug. Rice’s order, however, does not apply nationwide — it was limited to the 17 states and the District of Columbia that had sued.
That puts the FDA in a difficult position with two directly conflicting orders — at least in those states — potentially teeing up a dispute for the justices to resolve.
Within hours of Kacsmaryk’s decision, the Justice Department filed a notice of appeal in the New Orleans-based 5th U.S. Circuit Court of Appeals, and Attorney General Merrick Garland vowed the department would seek to immediately block Kacsmaryk’s decision in the hope of allowing the pill to remain in circulation while the lawsuit plays out in court.
The 5th Circuit is one of the most conservative in the country, featuring six judges who were also appointed by Trump; the panel hearing the Justice Department’s request in this case would be randomly selected.
If the Biden administration loses its appeal and Kacsmaryk’s order goes into effect Friday, mifepristone will become an unapproved drug for abortion.
The government could then turn to the Supreme Court, where it would need five votes to block Kacsmaryk’s decision. The nine-justice court has a 6-3 conservative majority.
The court’s conservative majority has issued a number of dramatic and consequential decisions in the three years since conservative Justice Amy Coney Barrett — one of three appointments made by Trump — replaced the late liberal Justice Ruth Bader Ginsburg.
The Dobbs decision was the most significant, but there have been other important rulings, including the expansion of religious liberty and of gun rights, as well as a decision last year limiting the federal government’s power to combat climate change.
On abortion, the votes of Justice Brett Kavanaugh, who was in the majority in Dobbs, and Chief Justice John Roberts, who voted against overturning Roe, would be pivotal. Kavanaugh wrote separately in Dobbs, casting doubt, at least on paper, on some of the more extreme arguments made by anti-abortion advocates, among them that the Constitution prohibits abortion, but it is unclear how he would rule about the FDA’s authority to approve mifepristone.
“Because the Constitution is neutral on the issue of abortion, this Court also must be scrupulously neutral. The nine unelected Members of this Court do not possess the constitutional authority to override the democratic process and to decree either a pro-life or a pro-choice abortion policy for all 330 million people in the United States,” Kavanaugh wrote.
Roberts joined his conservative colleagues in upholding a Mississippi law that bars abortion after 15 weeks, but he objected to overturning Roe, saying the right to abortion should have been interpreted as ensuring “a reasonable opportunity” to choose to terminate a pregnancy. His vote suggests he has little appetite to restrict abortion rights further than they have already been limited.
While court-watchers are skeptical that enough justices would allow Kacsmaryk’s decision to go into effect, uncertainty remains.
“My personal view is that the DOJ’s [Department of Justice’s] legal arguments are strong, but the Supreme Court can be quite difficult to predict … so I don’t feel like anyone can have a high degree of certainty about the outcome of this case,” said Adam Unikowsky, a lawyer who has argued cases at the court and clerked for conservative Justice Antonin Scalia.
Kacsmaryk, who was a conservative legal activist before he was appointed to the federal bench, suffused Friday’s ruling with striking rhetoric about abortion and disputed evidence about the safety of mifepristone. But the legal questions raised in the case are not limited to abortion; rather, they are dry issues relating to FDA approval of drugs, who can challenge those approvals and how and when those challenges can be brought.
Jonathan Adler, a professor at Case Western Reserve University School of Law in Cleveland, pointed out the case features no core constitutional issues.
“People want to talk about this as an abortion case, but there are multiple threshold legal issues that have nothing to do with abortion,” he said.
So even if the case does reach the Supreme Court, the vote breakdown in Dobbs may not signal much about what the justices will do.
The Biden administration has made it clear that it sees the Texas case as about more than abortion, as Kacsmaryk’s reasoning, if it is upheld, could open the door to all kinds of legal challenges to long-established drugs.
“When you turn upside down the entire FDA approval process, you’re not talking about just mifepristone,” Health and Human Services Secretary Xavier Becerra said Sunday on CNN. “You’re talking about every kind of drug. You’re talking about our vaccines. You’re talking about insulin. You’re talking about the new Alzheimer’s drugs that may come on.”
If the Justice Department wins in the 5th Circuit, there would be no need for it to seek Supreme Court involvement at this stage, but the coalition of anti-abortion groups and doctors that brought the Texas case could ask the justices to lift the hold. To do so, they would also need to win five votes, which legal experts say would be unlikely.
The Justice Department may also have a further strategic option. It could ask the Supreme Court for a chance to fully brief and argue the case on the merits to get a final decision instead of waiting for the appeals process to fully play out.
It took that approach in 2021 when the Biden administration challenged a Texas law, enacted before the Supreme Court overturned Roe, to almost completely ban abortion and evade judicial review. The justices allowed the law to remain in effect in a related case and dismissed the case brought by the Justice Department.
Laura Jarrett reported from New York, and Lawrence Hurley from Washington.