Supreme Court to hear two abortion cases this spring

Later this month, the U.S. Supreme Court will hear oral arguments on the case against the abortion medication mifepristone. It will hear a second case involving abortion in April with a closer look at state laws banning abortion and potential conflicts with general law.  The U.S. Supreme Court agreed this winter to hear United States […]

Supreme Court to hear two abortion cases this spring

Later this month, the U.S. Supreme Court will hear oral arguments on the case against the abortion medication mifepristone. It will hear a second case involving abortion in April with a closer look at state laws banning abortion and potential conflicts with general law. 

The U.S. Supreme Court agreed this winter to hear United States v. Idaho in April. The basic question of the case is whether a federal law outweighs a state abortion ban in Idaho.

The federal law, the Emergency Medical Treatment and Labor Act, requires that hospitals that receive federal Medicare funding must provide stabilizing treatment to a patient in a health emergency or transfer the patient to a hospital that can provide such care. The U.S. Congress passed the law in 1986 to ensure that patients who require emergency medical care can receive it at publicly funded hospitals regardless of the patient’s ability to pay for the service or insurance status.

Within a few weeks of the Supreme Court overturning Roe v. Wade through its Dobbs decision in late June 2022, the federal government issued guidance to all state agency directors of hospital requirements under EMTALA regarding emergency abortion care. The Centers for Medicaid and Medicare Services under the U.S. Department of Health, said in its memorandum that “any state actions against a physician who provides an abortion in order to stabilize an emergency medical condition in a pregnant individual presenting to the hospital would be preempted by the federal EMTALA statute due to the direct conflict with the ‘stabilized’ provision of the statute.” Another words, federal statute preempts state laws banning abortion if a pregnant person is in a medical crisis.

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Idaho had a so-called “trigger law” banning abortion that went into effect once the Supreme Court overturned Roe v. Wade and the federal Department of Justice sued the state in 2022 because its abortion ban directly conflicted with parts of the EMTALA. The complaint said that under Idaho law, providers would face criminal and civil action for providing abortion care as stabilizing treatment. 

That case has been fought and appealed in the lower district courts in Idaho until January when the Supreme Court agreed to hear the case on April 26, according to SCOTUSblog, a news outlet focused on on the workings of the court. Idaho claims in its complaint that the EMTALA does not explicitly mention abortion and that it is a law intended to ensure low-income patients will receive emergency care. The state argues that the law cannot be used to trump state laws with strict requirements on abortion ban exceptions for the life of the pregnant individual. 

This is the second abortion case the high court will hear over the next few months.

The justices will also hear the case around mifepristone, which is part of a two-step medication abortion regime, on March 26. That case, FDA v. Alliance for Hippocratic Medicine, will be heard along with Danco Laboratories v. Alliance for Hippocratic Medicine. Danco is the sole manufacturer of the brand label mifepristone and the company alleges that it would be harmed by the lower appellate decision to return the FDA to its 2016 rules. Danco also alleges that the court erred in its decision by viewing an incomplete administrative record, according to SCOTUSblog

The mifepristone case bounced around in the lower courts last year before the Supreme Court placed a stay so that the drug could continue to be prescribed and administered at least until the higher court could hear it. The conservative group behind the suit alleges that FDA erred in releasing the drug to the market in 2000 and that its effectiveness has not been proven. The question the Supreme Court will consider is whether to agree with the U.S. Fifth Circuit Court of Appeals, which would return the use of mifepristone to FDA rules it established in 2016.

But last month, Sage Publications, which publishes the journal Health Services Research and Managerial Epidemiology, retracted three articles which were cited as part of the evidence for the anti-abortion opposition position on mifepristone, according to NPR

The retraction states that the researchers for the three papers declared no conflicting interest but almost all of them are affiliated with anti-abortion advocacy groups. The articles were also peer reviewed by a researcher affiliated with an anti-abortion advocacy group.

Subsequent reviewers of the articles found misleading presentations of data, material errors in the authors’ analysis of the data, unjustified or incorrect factual assumptions and fundamental problems with the study design and methodology. 

Sage Publications did not respond to requests for comment.

University of New Mexico School of Law Professor Joshua Kastenberg told NM Political Report he does not think that the fact that some of the evidence for the conservative side has been discredited will have much sway with the Supreme Court justices. 

He said that despite the fact that conservatives are generally known to be very pro-business, he said “I don’t know if Danco Industries will be on the front end of the justices view on this one.”

So far, New Mexico has been protected by a Washington district court case where the judge ruled that 18 jurisdictions, including New Mexico, would not be impacted by the suit in Texas. But, Kastenberg said that if the Supreme Court sides with the Fifth Circuit, then New Mexico and the 17 other jurisdictions would lose their protected status on the issue.

If the Supreme Court agrees with the U.S. Fifth Circuit Court of Appeals and opines that the FDA has to return to its 2016 regulations, that has the potential to end abortion through telehealth, as individuals will have to return to traveling to a clinic to receive a prescription and pick up the medication itself. 

Both Supreme Court decisions are expected to be announced this summer.

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