‘The justices were kidding themselves’: Supreme Court takes up abortion after saying lawmakers should decide

The case now before the court undercuts one of the core arguments justices made when they overturned Roe v. Wade in June: that it’s not appropriate for “unelected members of this Court” to “override the democratic process” and set national abortion policy.

“This Court will no longer decide the fundamental question of whether abortion must be allowed throughout the United States through 6 weeks, or 12 weeks, or 15 weeks, or 24 weeks, or some other line,” declared Justice Brett Kavanaugh in a concurring opinion in Dobbs v. Jackson Women’s Health. “Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”

While the issue currently before the court is a technical one that hinges on judicial and administrative processes and not the merits of the parties’ abortion-rights arguments, it will still have the kind of substantive national impact justices vowed in the Dobbs ruling to avoid.

“The justices were kidding themselves if they thought the decision in Dobbs would somehow get them out of the business of dealing with abortion cases,” said Stephen Vladeck, a constitutional law professor at the University of Texas School of Law. “One would have to have remarkable blinders on not to have seen that.”

The abortion pills dispute is just one of several cases around the right to terminate a pregnancy that could ultimately come before the Supreme Court. Issues ranging from whether states’ anti-abortion laws clash with federal protections for patients, to the religious rights of people who support abortion access, to concerns over limitations to the Title X family planning program are already working their way through lower courts.

“Once Dobbs came down, it was predictable that this would happen. You’re not going to get the federal courts out of abortion,” said Carl Tobias, the Williams Chair in Law at the University of Richmond School of Law. “Society will continue to fight about this. There just isn’t a middle ground.”

In a Friday order, Justice Samuel Alito, who authored the majority opinion to overturn Roe, put on hold the restrictions on abortion pills that were set to take effect in most of the country and agreed to consider pleas for emergency relief from the Biden administration and the drug’s manufacturer. The anti-abortion medical groups that brought the challenge have until noon on Tuesday to submit arguments to the court pushing for the pill restrictions to take hold while arguments on the case move forward both at the Texas district court, which first decided to suspend the FDA’s approval of mifepristone, and the 5th Circuit, which upheld part of that ruling. The Supreme Court could vote this week to freeze the abortion pill restrictions indefinitely while the case unfolds in the lower courts or to allow them to go forward for now.

Though the 5th Circuit’s order that now sits before the Supreme Court wouldn’t go as far as Texas district court judge Matthew Kacsmaryk, who ruled in early April to cut off access to the pills nationwide, it would roll back access to abortion pills for millions of people, including those in Democratic-led states that have voted to protect abortion rights.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote in Dobbs less than a year ago. “‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ That is what the Constitution and the rule of law demand.”

Legal experts say the justices’ sweeping pledges to leave the abortion fray once Roe was overturned were doomed from the start.

Anti-abortion advocacy groups have been transparent that they see toppling Roe as just the beginning and are striving for the prohibition of abortion nationwide using whatever levers of power are available — from legislation to lawsuits to corporate pressure campaigns.

“The rights of fragile unborn children cannot simply be ‘left to the states,’” the group SBA Pro-Life America wrote in a memo to Congress shortly after the Dobbs ruling. “According to our estimates, [blue states that support abortion rights] account for approximately 55% of abortions that take place nationwide.”

Vladeck argues that the Supreme Court’s declarations last year “failed to account for two things: how much federal regulation is already involved in the abortion space, and how aggressive anti-abortion advocates would be in pushing further, armed by the court’s acquiescence in Dobbs,” he said. “The justices either underappreciated or failed to account for how ready the anti-abortion movement was.”

Even if the abortion pill case had not jumped to the top of the justices’ to-do list, several other federal cases concerning abortion rights could land on the Supreme Court’s docket. Those include legal battles over whether providers in the Title X family planning program can refer patients for abortions, whether state abortion bans violate federal laws requiring hospitals to treat patients in life-threatening crises, and whether state bans violate the religious rights of people whose faith supports abortion access.

This is not even the only lawsuit about abortion pills likely to come before the court.

More than a dozen Democratic attorneys general are challenging the remaining federal restrictions on abortion pills in a case likely headed to the 9th Circuit Court of Appeals. And courts in West Virginia and North Carolina are currently hearing a pair of cases that test whether state or federal rules around the pills should govern whether, how, and when patients can receive them.

Still more cases could be on the horizon as legislatures pass abortion laws that reach across state lines and advocacy groups prepare more legal challenges.

Supreme Court justices “were always going to have to resolve conflicts and tension between state and federal law” after overturning Roe, said University of Michigan Law Professor Leah Litman. “Especially now that states are going after abortion in ways that step on other rights, including the right to travel.”

Yet Steven Aden, the chief legal officer and general counsel for the anti-abortion group Americans United for Life, argues the justices are “semi-retired” when it comes to abortion and the Dobbs decision reduced the number of cases heading their way.

“I don’t think the SCOTUS can avoid the issue on the whole, forever,” he said. “But there has been a sea change. Litigation has shifted almost exclusively now to the states. So in that way, the Supreme Court got its wish. You don’t have dozens of federal cases trying to punch their tickets to the dance anymore.”

Aden, who is representing 147 conservative members of Congress in an amicus brief to the Supreme Court this week pushing the justices to allow the abortion pill restrictions to move forward, argued that doing so “squares reasonably well” with the Dobbs’ ruling — even if it has the effect of dictating abortion access nationwide.

“I don’t think the Supreme Court can fully divest itself of this issue because of federal agency action,” he said. “Nobody can be arbitrary or capricious, including the FDA.”

In its emergency petition to the Supreme Court last week, Danco, the manufacturer of the brand-name version of mifepristone, quoted the conservatives’ words from Dobbs — arguing that allowing the lower court’s limits on abortion pills to stand would violate what Alito, Kavanaugh and others wrote about the proper role of courts when it comes to abortion.

“This Court announced in Dobbs that it was returning the issue of abortion to the political branches,” the company’s attorneys wrote. “If the Court denies a stay, it abandons that assurance. Allowing the Fifth Circuit’s opinion to stand eviscerates the sovereign authority of States that wish to expand and protect access to medication abortion in their jurisdictions.”

Yet the Biden administration made no mention of Dobbs in its appeal to the court, focusing instead on attacking the challengers’ case and arguing that the harm caused by allowing the pill restrictions to take effect far outweighs any harm caused by maintaining the status quo.

Legal experts see this as the most prudent approach, arguing that it could backfire if it looks like the Justice Department is accusing the court of hypocrisy.

“Particularly in a case where the administration thinks they have a chance of getting five votes, they aren’t going to be throwing punches and picking fights,” Litman said. “Brett Kavanaugh and John Roberts think of themselves as principled institutionalists — they don’t like being called out.”