In the Courts

Supreme Court Poised To Reshape Abortion Landscape Once Again

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Roughly two years since the overturning of Roe v. Wade, the Supreme Court will hand down two rulings this month that could have major implications for the legality of abortion.

Since the Dobbs v. Jackson Women’s Health Organization ruling in 2022, many states have placed stricter bans on abortion, while President Joe Biden’s administration has made efforts to broaden access to the procedure. The Supreme Court is now weighing two cases, one to resolve tension between federal and state law on abortion restrictions, and another on whether or not the Food and Drug Administration (FDA) put women at risk by approving abortion pill prescriptions without a doctor visit.

The first case involves a law in the state of Idaho banning abortions entirely, with limited exceptions to save the life of the mother or in cases of rape and incest. In November 2022, the Department of Justice sued the state, claiming that the ban violated the Emergency Medical Treatment and Active Labor Act (EMTALA) passed by Congress in 1986, which prohibits hospitals from turning away patients having a medical emergency.

The DOJ argued before the Court in April that the law would prevent doctors from performing an emergency abortion out of fear of being prosecuted by the state. Justice Samuel Alito questioned the strength of the argument, noting that EMTALA requires doctors to provide emergency care to protect both the mother and the unborn child. Solicitor General Elizabeth Prelogar replied that Congress never intended for the law to be used to prevent an abortion for a woman “facing grave life and health consequences.”

“[EMTALA] tells us that Congress wanted to expand the protections for pregnant women so they could get the same duties to screen and stabilize when they have a condition that is threatening the health and wellbeing of the unborn child,” Prelogar said. “But what it doesn’t suggest is that Congress simultaneously displaced the independent, preexisting obligation to treat a woman who herself is facing grave life and health consequences.”

The Biden administration, however, is using EMTALA to override a state’s right to regulate abortion per the Dobbs decision, according to Kristi Hamrick, vice president of media and policy for Students for Life, who spoke to the Daily Caller News Foundation

“What Idaho is saying is that ‘We see the mother and child both as patients and abortion is not healthcare. If your healthcare kills people on purpose, you’re doing it wrong. We’re not turning people away. We’re offering stabilizing care and treating two patients.’  And the state is well within its rights to do so,”

Supreme Court justices also heard oral arguments in March for a second case regarding the FDA’s relaxed regulations on abortion pill prescriptions. A group of doctors from the Alliance for Hippocratic Medicine filed a lawsuit in 2022 arguing that FDA regulations allowing abortion pills to be shipped in the mail and prescribed without an in-person doctor visit put women at risk of serious complications that could require emergency treatment and surgery.

The lawsuit claimed that the FDA failed to go through the proper procedures to ensure that the new protocols would not create an increased risk to the patient’s health.

Doctors further argued that the FDA’s rules would require medical professionals who object to abortions to violate their conscience by surgically completing an abortion after a woman suffered complications.

The justices, however, appeared skeptical that the doctors had standing to bring the case, with Justice Elena Kagan noting that a lot of hospitals have “mechanisms in place” already to allow them to recuse themselves from certain procedures.

As with Dobbs case, both court opinions have the potential to dramatically change the political and legal landscape surrounding abortion. The real question, however, is whether or not the rulings handed down are of sound legal judgment or merely an attempt to politicize the law, according to Thomas Jipping, a senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

“Unfortunately, in a lot of different ways, abortion seems to change the way we look at everything. In the Idaho case, you have a federal statute versus a state statute and in the other case, you have federal regulations involved,” Jipping told the DCNF. “Courts should look at those objectively and impartially, figure out what they mean, how they apply to the facts of the case, and that’s it. Those decisions are neither right nor wrong because pro-lifers or pro-abortion advocates like them. We are losing the ability to separate those and it’s politicizing the law, which I think it’s a very dangerous trend.”

The DOJ and FDA did not respond to the DCNF’s request for comment.

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