Key Takeaways
There are two abortion cases that have recently asked for Supreme Court review. Dobbs v. Jackson Women’s Health Organization has requested certiorari and FDA v ACOG requested an emergency stay and is currently in the lower court, but the Supreme Court may review this case later in the term.

If the Court reviews one of these cases, their ruling could have significant implications for abortion access across the U.S. While it’s impossible to predict how a newly re-figured conservative Court would rule, and whether they would uphold precedents on abortion, more likely decisions and implications are as follows:

  • Court Limits Legal Standing to Challenge Abortion Regulations: Supreme Court decides that doctors and clinics no longer have the right to challenge abortion regulations on behalf of their patients (third-party standing), abortion would remain a constitutional right, but many unconstitutional abortion regulations may go unchallenged.
  • Court Overturns Roe v. Wade: Supreme Court overturns Roe v. Wade and allows states to ban abortion before viability. 16 states have laws intended to immediately ban abortion. Many other states have gestational limits currently blocked by court orders and would either greatly restrict or completely ban abortions.13 states and DC protect abortion.
  • Court Creates New Legal Standard for Evaluating Abortion Regulations: The Supreme Court may create a new legal standard that does not require states to show that the benefits outweighs the burden to patients (balancing test) as they did in a prior abortion case. As a result, some abortion-specific provider laws that would have been unconstitutional under the Whole Woman’s Health balancing test will now be constitutional.

Among the most contentious issues in the country right now is abortion. With the new appointment of Justice Amy Coney Barrett to replace the seat left vacant after the death of Justice Ruth Bader Ginsburg, the Supreme Court has a solid 6-3 conservative majority. One abortion case is pending at Supreme Court to determine if the Court will review it this term, and the Court may be asked to review a second abortion case that it recently sent back to the District Court to reevaluate its decision. Four justices need to vote in favor of considering a case in order for the Supreme Court to review the case. If the Court accepts these cases, their ruling could have significant implications for abortion access across the United States. While it is impossible to predict whether the Court will take one of these cases this term and how they will rule, the cases open the door for the possibility that the Court would take several approaches that could limit legal access to abortion in many states across the country even without directly overturning Roe v Wade. The Court could rule in a way that would grant states much more authority to restrict abortion access or overturn the long-held precedent that abortion doctors and clinics have the right to bring lawsuits to challenge abortion regulations on behalf of their patients (third-party standing), which would require patients themselves to sue the state. This outcome would not have the same headlines as overturning Roe v Wade – which is also a possibility with a more conservative Court — but would make it extremely difficult for state laws to be challenged because it would have to be women themselves who would have to sue the state. This brief reviews these cases and explores possible outcomes.

Dobbs v. Jackson Women’s Health Organization: 15 Week Gestational Ban

The first case, Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organization, involves a Mississippi law, House Bill 1510, Gestational Age Act, banning all abortions over 15 weeks’ gestational age except in medical emergencies and in the case of severe fetal abnormality. The US District Court for the Southern District of Mississippi and the 5th Circuit Court of Appeals both struck the law down as unconstitutional.

Who has legal standing to challenge a law regulating abortion?

State request: Mississippi is asking the Court to review whether abortion providers have standing to challenge laws enacted to protect their clients’ health. The state is contending that abortion providers have an inherent conflict with their patients because the providers make money by providing services, and are not necessarily interested in protecting patients’ health.

Usually, a person can only challenge the constitutionality of a law if it infringes on their own rights, not broadly on the rights of others. However, “third-party standing” allows another person or organization to assert the rights of another individual when it is difficult for that person to assert their own rights, and the parties’ interests are closely aligned. In cases relating to the right to abortion, it is very hard for women themselves to serve as plaintiffs, and for 45 years the Court has permitted their doctors sue on behalf on women. The Supreme Court established third party standing for abortion doctors on behalf of their patients in a 1976 decision, Singleton v. Wulff. This case was brought by two doctors challenging the exclusion of abortion in Missouri’s Medicaid program. Justice Blackmun wrote for the court, “Aside from the woman herself, the physician is uniquely qualified, by virtue of his confidential, professional relationship with her, to litigate the constitutionality of the State’s interference with, or discrimination against, the abortion decision. Singleton recognized that women would be deterred from asserting their abortion rights out of concern for their privacy.

June Medical Services: Justices Dissent about Providers’ Standing

Justice Thomas Dissent: “Our abortion precedents are grievously wrong and should be overruled.” “The only injury asserted by plaintiffs in this suit is the possibility of facing criminal sanctions if the abortionists conduct abortions without admitting privileges in violation of the law. But plaintiffs do not claim any right to provide abortions, nor do they contest that the State has authority to regulate such procedures.”

Justice Alito Dissent (joined by Justices Gorsuch and Thomas) “This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement. Applying for privileges takes time and energy, and maintaining privileges may impose additional burdens. Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring. Some may not see the conflict in this case because they are convinced that the admitting privileges requirement does nothing to promote safety and is really just a ploy. But an abortion provider’s ability to assert the rights of women when it challenges ostensible safety regulations should not turn on the merits of its claim.”

Potential Outcome: Justices Thomas, Alito, and Gorsuch, dissented from the Court’s ruling for June Medical Services v. Russo stating that abortion providers lacked standing to challenge a law that enacted to protect women’s health. Justice Kavanaugh stated that the case should be remanded to the District Court to address the question of the doctors and clinics standing. With a new conservative Justice, the Court may overturn the long-held precedent that abortion doctors and clinics have the right to challenge abortion regulations on behalf of their patients (third- party standing). If the Court decides that doctors and clinics no longer have the right to challenge abortion regulations on behalf of their patients, abortion would remain a constitutional right, but the constitutionality of many abortion regulations may go unchallenged. Women seeking abortions often must overcome numerous obstacles, including financial limitations, and concerns for privacy and personal safety, that would make it difficult for them to assert their constitutional rights and challenge an abortion restriction. This could have far-reaching implications for other cases where third-party standing has been recognized including physicians’ ability to challenge laws on behalf of their patients’ rights to privacy for contraception, and to obtain mental health services.

Will the Supreme Court Change the Constitutional Right to Abortion Established by Roe v. Wade?

State request: Mississippi contends that the Court’s viability standard set in Roe v. Wade is unsatisfactory and does not allow the state to protect unborn life or maternal health. The state cites state laws allowing wrongful death suits pre-viability and argues that the strict viability standard is out of date with medical advancements.
Potential Outcome: If the Supreme Court overturns Roe v. Wade and allows states to ban or restrict abortion before viability, 16 states have laws that are intended to immediately ban abortion; nine of these states have a law banning abortion on the books that predates Roe v. Wade and six states have expressed the intent to limit abortion to the maximum extent permitted by federal law (Figure 1). Thirteen states and DC have laws protecting abortion access.

Figure 1: 16 States have Laws that are Intended to Ban Abortion if Roe v. Wade is Overturned​

Twenty-four states have laws that establish gestational limits ranging from 6 weeks to 24 weeks. While states have passed these laws, many are currently blocked by lower court actions, and not in effect. If the Supreme Court allows states more deference to set gestational limits, many states may not immediately ban all abortions and could apply their currently enjoined policies and restrict abortion as early as 6 weeks.

If Roe v. Wade stands, will the Supreme Court change the legal standard to evaluate whether an abortion regulation is constitutional?

State request: Mississippi is asking the Court to clarify how to assess the validity of state interests after Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt.

In Whole Woman’s Health, the Supreme Court clarified that abortion restrictions are only constitutional if they further a valid state interest and have benefits that outweigh the burdens placed on women seeking abortions. The benefits and burdens of the laws must be based on credible evidence. The Court emphasized that the previous standard established in Planned Parenthood of Southeastern Pa. v. Casey “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” The rule announced in Casey “requires that courts consider the burdens a law imposed on abortion access together with the benefits those laws confer.”

In Whole Woman’s Healththe Supreme Court stated, “the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The Court prioritized the evidence that was presented in the case and placed less emphasis on the purported purpose of the law when enacted by state legislators.

The Court concluded that the Texas law requiring doctors who perform abortions to have admitting privileges at nearby hospitals did not provide any benefit to women’s health and concluded each provision of the law “places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access.” Therefore, the burden the law placed on women’s access to abortion outweighed the benefit. The district court that held the Texas law was unconstitutional based the factual findings of the lack of benefits on peer-reviewed studies on abortion complications, and expert testimony.

In June 2020, in June Medical Services LLC v. Russo, the Supreme Court ruled that a Louisiana law (nearly identical to the Texas law considered by the Court in Whole Women’s Health) requiring doctors to have admitting privileges at nearby hospitals was unconstitutional. While Justice Breyer wrote the opinion of the Court, Chief Justice Roberts wrote a separate concurring opinion, which reached the same conclusion that the law was unconstitutional, but he did not apply the balancing test (that the benefits must outweigh the burdens) used in Whole Woman’s Health. While Chief Justice Roberts joined the dissent in Whole Woman’s Health, he concurred with the Court’s judgment striking down the Louisiana law in June Medical. Roberts concurred in June Medical because he believes the legal doctrine of stare decisis requires the Court to follow the precedent established by the Whole Women’s Health decision. Relying on the decision in Whole Woman’s Health that the Texas admitting privileges law imposed a substantial obstacle on women seeking abortions, Roberts concludes the same decision is required for the Louisiana admitting privileges law.

However, in his concurring opinion in June Medical Services, Chief Justice Roberts disagrees with the balancing test set forth in Whole Woman’s Health. Instead, he believes that the Court should analyze the constitutionality of abortion laws by asking the question established in Planned Parenthood v. Casey: does a law place a substantial obstacle in the path of a woman seeking an abortion? Abortion opponents interpret Chief Justice Roberts’ concurring opinion as an opening to bring new cases involving other types of abortion regulations to the Court to allow the conservative majority to articulate a new legal standard to evaluate abortion regulations.

Potential Outcome: The conservative majority of the Court will likely overturn the standard established by Whole Woman’s Health balancing test in the next case they accept. The Court may require just an inquiry about whether the law poses a “substantial obstacle” rather than requiring an inquiry about whether the benefits to women outweigh the burdens to women. As a result, the Court may create a standard that would allow state laws with little or no benefit to women. 24 states have abortion specific provider laws, such as requiring hospital admitting privileges for providers or specifying the clinic must meet structural standards comparable to ambulatory surgical centers, that may be upheld under a burden only inquiry but would have been found unconstitutional under a standard requiring the benefit to outweigh the burden. In addition, the Court may disavow the precedent also set in Whole Woman’s Health that courts can look beyond the legislature’s declaration of benefit to women and review medical and scientific evidence about whether the law provides a benefit to women.

FDA v. ACOG: Restrictions for Medication Abortion During the Pandemic

In August 2020, the FDA petitioned the Supreme Court for an emergency stay to block a national injunction issued by a district court in the case. Food and Drug Administration v. American College of Obstetricians and Gynecologists (ACOG). ACOG challenged an FDA requirement that places a severe restriction on the distribution of Mifepristone, the drug used as part of a medical regimen to induce abortion with pills. ACOG contends that this requirement, called Risk Evaluation and Mitigation Strategies (REMS), is not medically necessary and requires patients to go in-person to a provider office or clinic to get the drug, which puts patients at risk of SARS-CoV2 exposure during the pandemic. The REMS only permits medical providers who have received special certification from the manufacturer to prescribe and directly dispense the drug. This requirement not only limits the number of clinicians able to prescribe medication abortions, but also means patients cannot obtain the medication from a retail pharmacy or by mail. The United States District Court of Maryland ruled in favor of ACOG, preventing the FDA from enforcing the REMS for mifepristone, abortion medication during the COVID-19 pandemic. The FDA requested that the Supreme Court lift the national injunction preventing the FDA from enforcing the REMS, contending that it is constitutional to impose a regulatory requirement on one method of abortion, even if it creates an undue burden on people seeking this method of abortion, when another method is safe.

FDA’s request (represented by the Solicitor General): The Solicitor General requested a stay of the nationwide injunction allowing the FDA to reinstate the REMS. On October 8, 2020, six weeks after the FDA’s request, to obtain a more comprehensive record, the Supreme Court issued an order suspending the case and directing the FDA to request the District Court to lift or modify the preliminary injunction. Justices Alito and Thomas dissented from the Court’s order. This unusual order to not rule on the stay until the FDA requests the District Court to reconsider the scope of the injunction may reflect a compromise because there were only eight justices when the Court issued the suspension. If the case comes back to the Supreme Court, there will be nine justices. While this case could be limited to the availability of mifepristone during the pandemic, it could also have broader implications. The Solicitor General argues that the Court would grant review of a decision affirming the preliminary injunction in order to clarify whether the balancing standard created under Whole Woman’s Health will be applied to abortion regulations to determine if they are constitutional.

Future of the Legal Right to Abortion in U.S.

It is very likely that a newly configured Supreme Court will either review one of the pending abortion cases or other challenges to state abortion laws that have not yet reached the Court. With the new seating of Justice Amy Coney Barrett, the Court’s 6-3 conservative majority may make changes to how abortion regulations are evaluated. If the Supreme Court allows states more authority to limit abortions or limits legal standing to challenge abortion regulations to people seeking abortions, without a federal standard, state laws will alone determine whether, when, and where women have legal access to abortion in this country.

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