Anticipating a Cynical Supreme Court Move on Abortion

It is somehow June, which means the nine unelected, life-tenured justices on the Supreme Court are releasing more and more opinions. Decision time is kicking into high gear with the court announcing it will drop rulings on Thursday and Friday this week. (Law professor Steve Vladeck noted that Friday, June 14, is Flag Day, a sacred occasion in the Alito household.)

There are a bunch of scary cases this term, but I'm focusing on two of them, both about abortion. And, yes, it is horrifying that just two years after the Dobbs decision, there are multiple abortion cases at the court. The first case is about abortion pills and the second is about ERs performing abortions in medical emergencies. I don't actually expect these rulings to come out until the last week of June when the big stuff usually drops but I could be wrong and, in the meantime, I want to prepare people for the possibility that the court could try to release them close together as an attempt at damage control. Let me explain.

The case about abortion pills is a manufactured attempt to slap years-old restrictions on the drug mifepristone. This case got a ton of attention due to the far-right judge who first heard the case, Matthew Kacsmaryk, who tried to revoke FDA approval of the drug altogether. But the anti-abortion doctors who filed the suit don't have legal standing to sue and during arguments in March, and it sure sounded like a majority of the nine justices agreed and are likely to rule against them. (Bare minimum—do not congratulate.)

Meanwhile, the lawsuit over emergency room abortions is a sleeper attempt to begin to establish fetal personhood. The Biden administration sued Idaho because its abortion ban doesn't have an exception for when the health of the pregnant person is at risk, which contradicts a federal law called the Emergency Medical Treatment and Active Labor Act, or EMTALA. Idaho argued in April that their ban is fine, actually, because it claimed EMTALA said that hospitals had to treat the "unborn child" as a second patient. No it fucking did not. This is terrifying stuff in the larger conservative project of a nationwide abortion ban. It's also unconscionable in the short term because doctors are so scared of states like Idaho and Texas charging them with felonies that women and pregnant people are being airlifted out of state, or are losing organs from being denied care.

It's very possible that the court could rule for Idaho in this second case and gut the federal law on emergency care—at least when it comes to abortion. On a press call last week, Julia Kaye, a senior staff attorney with the ACLU Reproductive Freedom Project, said siding with Idaho would be giving "states the green light to throw doctors in prison for providing emergency abortions." Her colleague, Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said "that would be a new low for the Supreme Court."

So what's a court with an image problem to do? They might release these two abortion decisions close together, possibly even on the same day, because the conservative justices may assume—perhaps correctly—that they can manipulate the media into calling them "moderate." You can absolutely envision the coverage in both-sides-loving legacy outlets: A win for pro-choice advocates in the abortion pill case and a loss in the emergency abortions case, how reasonable!

None of it is reasonable as the mifepristone case has been bullshit from day one and women are more than incubators for the state. Yet the conservative justices have an incentive to lull the public into complacency. As I wrote in December when the court agreed to hear the abortion pills case: "That kind of coverage could serve as insulation from calls for court reform and get weaponized by politicians who want to act like there’s nothing to see here, and abortion won’t be banned if you vote for a Republican, or stay home." And if Trump does win in November, not only would no one touch the court, but Justices Clarence Thomas and Samuel Alito would likely retire.

I suspect the court could have these two cases come out around the same time (same week or even same day) so reporters and pundits talk about them together, not in isolation. But even if I'm wrong, please know that this court isn't at all reasonable and several justices seem open to tactics that could be used to restrict or ban abortion nationwide in a second Trump term. Yes, I'm talking about the Comstock Act and fetal personhood. We might even seen Thomas and Alito writing about these concepts in the final opinions.

Consider this a PSA to be on the lookout for very dumb press coverage. Lord knows it's already begun.

Also:

• For Jezebel, I wrote about how abortion ballot measures unfortunately aren't safe from the Supreme Court, or conservative state courts. And it's once again due to Comstock and fetal personhood.

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