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These U.S. Supreme Court cases could affect abortion access nationwide

And a future case centered on the Comstock Act is building, too

The U.S. Supreme Court is seen on Capitol Hill in Washington, May 2, 2023.
FILE - The U.S. Supreme Court is seen on Capitol Hill in Washington, May 2, 2023. (AP Photo/J. Scott Applewhite, File Photo)

How much access should a person have to abortion pills? And should doctors in states with abortion bans be able to perform the procedure during medical emergencies? 

Two cases that the United States Supreme Court is expected to rule on this summer could answer these questions and have a ripple effect on abortion access nationwide. 

One case challenges ease of access to abortion medication while another challenges whether a federal law concerning emergency care supersedes a state’s abortion ban. It’s the first time the nation’s highest court has reviewed abortion-related cases since overturning federal protections two summers ago. 

Mary Ziegler, a legal historian who has written about abortion law, noted that the emergency room case in particular can be a “game changer” pending its ruling. 

“Whatever the Supreme Court decides will have an effect on how a lot of states’ abortion bans are interpreted,” she said. 

Idaho v. The United States

This case could determine whether a federal statute outweighs a state’s abortion ban when it comes to emergency medical care.

Idaho officials are seeking to disregard the Emergency Medical Treatment and Labor Act, otherwise known as EMTALA. 

The nearly 40 year old federal law requires hospitals with emergency rooms that receive Medicare funding to provide “stabilizing treatment” to anyone experiencing emergency medical conditions. Most hospitals in the nation receive Medicare funding, and therefore would be subject to EMTALA. 

Plaintiffs in the case say this is at odds with Idaho’s own abortion law, though. 

Idaho enforces its abortion ban with criminal penalties up to five years in prison for people who perform them or assist people in getting them. There are limited exceptions for rape, incest and to save the life of the pregnant person, excluding protections for pregnancy complications. 

Doctors in Idaho have been sending pregnant patients out-of-state to comply with the state’s abortion law. During such medical emergencies, some patients are air-lifted out of the state. 

Dr. Stacy Seyb, a maternal fetal medicine specialist in Boise, explained that it’s become a safer alternative to send a pregnant patient elsewhere should they suspect an emergency abortion may be needed. 

“There are times they may not even need the procedure. But we can’t predict that, and we can’t predict how quickly their status might change,” Seyb told Idaho Capital Sun. “I think it’s a great hardship, it’s an extra expense to our medical system, and it doesn’t make sense why something that I’ve been doing for 30 years of my career is now taboo.”

Countering this, President Joe Biden’s administration argues that EMTALA should protect doctors should abortion be needed as “stabilizing treatment” in emergencies. Plaintiffs in the case from Idaho argue that interpretation of EMTALA could make it too easy for patients to get abortions. 

When visiting Richmond earlier this year, U.S. Secretary of Health and Human Services Xavier Becerra said that the Biden Administration would “pull every lever” to protect reproductive healthcare access — such as defending EMTALA in the case against Idaho.

In line with the administration’s support for protecting abortion access, the Centers for Medicare and Medicaid services launched a new option on the CMS.gov website for people to file complaints if they feel EMTALA has not been upheld.

While a ruling in the case would only apply to Idaho, it may set a precedent for more than 20 other states which have deep abortion restrictions or near total bans. As the least restrictive southern state, Virginia’s Planned Parenthood is already reporting a 30% increase in out-of-state patients. 

Jamie Lockhart, the director of the Virginia League of Planned Parenthood, thinks the number of patients traveling for abortions outside of their home state could increase. 

“When and if the Supreme Court allows Idaho to do this — then it’s going to be Texas, and it’s going to be Mississippi, and Alabama, and just across the South,” Lockhart said. 

It concerns her, especially as she thinks about the broader maternal health outcome disparities for patients of color, in part due to racial bias, and people living in rural communities that already have to travel further for care to begin with. 

Meanwhile, the other abortion-related case before the Supreme Court could make it more difficult to obtain abortion medication.

FDA v. Alliance for Hippocratic Medicine

The outcome of this case could affect ease of access to a common drug used in early-gestation abortions — which make up roughly two-thirds of abortions nationwide.

First approved by the Food and Drug Administration in 2000, mifepristone is the first part of medicine-induced abortions or miscarriage-related care. Mifepristone blocks a hormone that’s needed to continue a pregnancy and another drug, misoprostol, is administered after to help bodies expel tissue. The drugs typically are used for abortions under 10 weeks of gestation, but are also used to manage miscarriages to help prevent deadly infections.

Abortion-opposing physicians and organizations previously argued in lower courts that the FDA should not have approved mifepristone 24 years ago. Now, they argue that the drug should not have become easier to access in 2016 and 2021. The FDA changes from those years increased the limit of when it could be used from seven to 10 weeks of gestation and allowed for telehealth prescriptions, respectively. 

Those provisions could be affected if the court ruled in favor of the plaintiffs.

“Patients in Virginia would be forced to receive this care in person rather than via a telehealth appointment — which we know places undue and medically unnecessary barriers to care for people across Virginia who struggled to travel long distances to receive care,” Lockhart said. 

However, when the case was heard by the Supreme Court this spring, it seemed likely the judges would preserve access to the medication. The justices may decide the plaintiffs lack the legal standing to sue.

But Zeigler, the legal scholar, cautions that a favorable ruling to abortion advocates in the mifepristone case may not be the end of challenges to the drug and abortion at-large.

A potential future case is building

Attempts to enforce the Comstock Act — a dormant federal law from 1873 — have been surfacing in local governments around the country. Grayson County in Southwest Virginia voted down a measure last year, while a case in New Mexico has advanced to that state’s supreme court.

The 19th Century act prohibits the mailing of “obscene” or “lewd” materials such as pornography, as well as contraception and “every article or thing designed, adapted, or intended for producing abortion.” 

Over the years Congress chipped away at the act, but the abortion components have remained. 

Now, they’ve emerged in modern-day arguments against the procedure.

Proponents of implementing the act interpret it as a way to stop the mailing of abortion medications and materials needed to perform an abortion or establish a clinic. Local governments have considered ordinances that employ the act. 

Mark Lee Dickson, the architect of the national movement, told the Richmond Times-Dispatch last summer that the ordinances are “simply requiring compliance with these federal statutes, which we believe completely stops abortion in communities.”

Dickson travels the country meeting with local officials who are interested in invoking the act. He and legal ally, former Texas Solicitor General Jonathan Mitchell, offer their representation in the case of legal challenges. 

Dickson said this offer “goes up” to the U.S. Supreme Court. 

Justices Thomas Alito and Clarence Thomas recently mentioned Comstock while hearing the FDA v. Alliance for Hippocratic Medicine case

Conservative think tank The Heritage Foundation also offers guidance for national abortion restrictions. Its series of policy goals called “Project 2025” has included the legal code for Comstock without naming the law specifically. 

Calling abortion medication a “gift to the abortion industry,” the guidebook asserts that the FDA should “stop promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs.”

While Comstock itself has not yet made it to the Supreme Court in the form of its own case, Ziegler noted how the issue is gaining salience. 

“Now, I think you’re seeing it as, you know, a major election issue and something that a lot of Republicans say a (President Donald Trump Department of Justice) would do,” Zeigler said. “Of course, Trump has essentially avoided answering the question.”

While many GOP congressional candidates, including in Virginia, have said abortion regulation is a state-level issue, Democrats hope to proactively shore up federal protections legislatively. Virginia Sen. Tim Kaine has pressed to codify protections through the Reproductive Healthcare For All Act and Biden has made abortion protections a pillar of his reelection campaign.

Should Democrats retain the White House and make gains in Congress, they could enact various protections. But the Supreme Court still has a conservative majority that could continue its pattern of taking up legal challenges to abortion access.

This story was originally published by the Virginia Mercury


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