Access to reproductive health care in the US has been fraught since the overturning of Roe v. Wade, the U.S. Supreme Court decision that enshrined the constitutional right to abortion. In the two years since nearly half of the U.S. has been cut off from comprehensive reproductive care: medical professionals are even turning away patients in medical crises for fear of prosecution.
In the wake of the Dobbs decision, the over-the-counter abortion pill containing the drug mifepristone has come into the spotlight. The prescription pill can be taken at home and can be prescribed via telehealth, making it a potential lifeline for those seeking to end a pregnancy in an “abortion desert.”
While some have begun stockpiling the pill in case of future bans, a few legislators have considered how it can be regulated to further decrease access to abortion care. The controversy around the pill is at the heart of a Supreme Court case delivered this past spring, Food and Drug Administration (FDA) v Alliance for Hippocratic Medicine.
The latter group, an organisation composed of anti-abortionists in the medical field, sued the FDA over its approval of the abortion pill. The Texas judge who initially presided over the case attempted to suspend the FDA’s approval of mifepristone, which would “effectively halt its availability nationwide.” However, the U.S. Supreme Court (SCOTUS) announced it would hear the case—alarming reproductive justice advocates—but ordered that mifepristone was to remain available in the meantime.
In June, the Supreme Court went on to dismiss the case in a unanimous opinion, not over the issue of the FDA’s approval of mifepristone, but rather because the case itself had no legal standing. No damage had actually occurred as a result of the FDA’s approval of mifepristone, so the case was entirely hypothetical. The Supreme Court determined that this made the case ineligible for deliberation.
The Supreme Court rendered a second decision related to abortion care in June, Idaho v. United States, that similarly sidestepped the central issue of abortion access. In 2022, the United States Department of Justice (DOJ) sued the state of Idaho over its broad abortion ban. The ban was uniquely strict in that it banned all abortions, despite typical exceptions for rape, incest, and the health of the pregnant individual. Such exceptions are essential because abortion care can be necessary medical treatment during severe, life-threatening pregnancy complications. Without such exceptions, healthcare providers can feel they are risking their medical licences and worry that they may even be jailed for treating their patients.
The DOJ therefore argued that Idaho’s law conflicted with a federal law called the Emergency Medical Treatment and Labor Act (EMTALA), which preempts state law. The 1986 act requires hospitals participating in Medicare to stabilise individuals with emergency medical conditions, including active labour. It further requires participating hospitals to transfer patients in emergency medical conditions if they cannot administer stabilising treatment. If medical staff at a hospital deemed abortion care to be the necessary treatment to stabilise a patient, the DOJ argued the ban could not be upheld because EMTALA applied.
After the suit was filed, the federal District Court of Idaho temporarily prohibited the state from enforcing the ban in EMTALA applicable cases. The state of Idaho appealed, and when the injunction that allowed the EMTALA exception was upheld, Idaho “sought immediate relief from the US Supreme Court.” The Supreme Court took the case and stayed the injunction. In other words, the Supreme Court allowed the ban to be upheld even in EMTALA cases until it released its decision.
Ultimately, the Supreme Court decided it had taken the case “improvidently”, meaning that it shouldn’t have taken the case at all. The decision effectively sent the case back to the lower courts to decide on the actual legal matters, and the stay was lifted. This in turn meant that Idaho hospitals are permitted “to perform abortion in EMTALA cases”, even if this permission is temporary.
Though the two decisions last June did not deliver further blows to access to abortion, neither did the decisions signal a change of heart by the Supreme Court. The cases hinged on procedural grounds rather than legal analysis. If anything, that the Supreme Court accepted these cases only to dismiss them signals its interest in ruling on abortion.
While the judicial branch continues to ring a death knell for reproductive freedoms in the U.S., Democratic leadership in the Senate attempted to codify the right to contraception at the federal level.
Anti-abortionists have yet to launch a concerted, transparent effort to dismantle access to contraception, but there are certainly warning signs that the fundamental right to contraception is under threat. Perhaps most glaringly, Supreme Court Justice Clarence Thomas went so far as to write that the precedents cementing the right to contraception should be reconsidered. Perhaps most pressing, however, is that the legality for access to birth control is following a similar trajectory to that of abortion: the Supreme Court is slowly chipping away at the legal infrastructure for birth control access.
In the 2010s, the Supreme Court released a series of decisions that limited abortion access by allowing states to impose stricter and stricter regulations. After Dobbs, it’s clear these cases culminated in the disenfranchisement of the constitutional right. During the same decade, however, the Supreme Court also released a series of decisions that carved out loopholes for private businesses to deny insurance coverage for contraception.
One such case was the Burwell v Hobby Lobby ruling in 2014, in which the Supreme Court allowed private companies to exclude contraception from employees’ insurance coverage. According to Planned Parenthood, “the decision […] applied to more than half of U.S. workers.”
The rollback to birth control access also played out at the state level. Some states have excluded certain modes of birth control from their Medicaid programs, despite the requirement to cover family planning services under Title X. Texas, for example, “received permission from the Trump administration to exclude emergency contraceptives from its Medicaid-funded family planning program.”
Democrats were therefore correct during floor speeches in support of the bill to codify the right to contraception when they cited the increasing threat to the right to contraception. However, the move rang somewhat hollow as it was generated at least partially, if not primarily, as a PR stunt to bolster campaign donations for Democratic candidates.
The bill was written, sponsored, and brought to the floor for a roll call vote extremely fast, and a giant, inflatable IUD was displayed outside Union Station on Capitol Hill. Despite rallying around the bill, it was always expected to fail because of the Senate’s longstanding deadlock. The point of the bill was never for it to pass.
Arguably, the point was instead to have a record of those who supported and opposed the bill. This is a common tactic, and it has merit in holding elected officials accountable for their positions, as well as in creating a public record of those positions for their constituents. But to many beleaguered Democrats, that point is moot: the country already knows many Republicans are anti-abortion.
Democratic leadership failed to pass legislation while advocates sounded the alarm bells for the fall of Roe and state legislatures passed increasingly severe bans. The consistent refrain from party leadership has been to encourage voter turnout in the next election. All the while, the day-to-day realities of millions of Americans remain: they are forced to carry unwanted pregnancies to term and denied medical care in health emergencies while the education systems for medical professionals corrode.
As the presidential election looms this November, reproductive rights will remain key talking points from both candidates and their parties by extension. But it must be more than a talking point. With the Supreme Court’s conservative majority, record of breaking precedent to side with anti-abortionists, and Court reform unlikely, the only viable paths to restore reproductive justice are through executive or congressional action.
Image by Ted Eytan via Flickr