Healthcare Law Blog

Recent Supreme Court Decisions and the Impact on Reproductive Rights

Recent United States Supreme Court decisions have delivered small temporary wins for reproductive rights. A unanimous Supreme Court rejected a challenge to the FDA’s rule for prescribing and dispensing abortion pills. On June 13, 2024, a unanimous court decided in Food and Drug Administration v Alliance for Hippocratic Medicine that the anti-abortion doctors and medical groups that challenged the expansion of access to mifepristone, one of the two drugs used in medical abortions, lacked standing. Justice Brett Kavanaugh, writing for the court, acknowledged the challengers’ “sincere legal, moral, ideological, and policy objections” to elective abortion and to the FDA’s changes to the conditions on the use of mifepristone. However, the challengers to the FDA regulation failed to show how they had been harmed, as they do not themselves prescribe the medication. The court further found that merely objecting to abortion and to the FDA’s policies are not enough to establish standing and bring a case to federal court. The challengers contended that having to treat patients who suffered complications from using the drug is a harm to them and similarly convicted providers in other respects, such as diverting resources, increasing the likelihood of lawsuits, and increasing insurance costs. Justice Kavanaugh continued to describe the speculative nature of the challengers’ attempt to establish standing. If the challengers could sue with this theory, it could open a dangerous door to challenge “almost any policy affecting public health.”

Mifepristone for the time being will continue to remain available in the United States. Not only will providers be able to utilize telehealth prescriptions and mail delivery for patients where state law allows, individuals across the United States can also continue to fill their prescriptions with retail pharmacies in states where access to abortion remains legal. Providers are not required to prescribe mifepristone to patients. They may still be required, however, to follow the Emergency Medical Treatment & Labor Act, known as EMTALA[1], in the event that patients obtain mifepristone from other providers and then suffer complications. 

Though the recent SCOTUS decision rejected the challengers’ request to impose nationwide restrictions on mifepristone, importantly, the court did not judge the case on its merits. Individuals and groups who wish to challenge the FDA’s regulations regarding mifepristone and similar drugs are still able to do so. For instance, Idaho, Missouri, and Kansas, with their attorneys general, were able to intervene in and revive this lawsuit due to Judge Matthew Kacsmaryk’s order, allowing the challenge of mifepristone to continue. These states will have to prove standing in those proceedings in the Federal District Court for Northern District of Texas. Justice Kavanaugh also delineated alternative methods for the challengers who objected to the decision and action, in that “citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions.” 

The Supreme Court also issued another notable decision on a separate abortion-related action in United States v. Idaho and Moyle v. United States. In a per curium opinion on June 27, 2024, the Supreme Court dismissed the case as “improvidently granted,” meaning the Court should not have accepted the case. While the court did not rule on the merits of the case, the court temporarily leaves in place an order by a federal judge in Idaho that blocks the state from enforcing its abortion ban. In a concurring opinion, Justice Elena Kagan noted that there is a major gap between the federal law which requires treatment during health emergencies and the state law that would ban criminal prosecution for refusing to perform an abortion during health emergencies. Specifically, “what falls in the gap between them are cases in which continuing a pregnancy does not put a woman’s life in danger, but still places her at risk of grave health consequences, including loss of fertility.” Due to this conflict, Kagan argued that returning the case to the Ninth Circuit would be appropriate to truly consider all the details of the case before deciding on the merits. On the dissenting side, Justice Samuel Alito indicated that the court should have decided the case on the merits, even if they are emotional and highly politicized. Thus, for now, women in Idaho may receive an abortion when their health is at risk. 

In Kentucky, these rulings do not make a meaningful difference to Kentuckians’ access to abortion. The Kentucky General Assembly passed House Bill 3 in April of 2022, which made mifepristone illegal to ship by mail within the state and created certification requirements for providers to prescribe the medication. It further banned all abortions after 15 weeks of gestation, among other regulations and restrictions. On June 4, 2022, SCOTUS effectively decided in Dobbs v. Jackson Women’s Health Organization that the Constitution does not confer a right to abortion. In doing so, the court removed the constitutional right to privacy and bodily autonomy by giving states increased rights to limit and even outlaw abortions. Decisions in well-known cases such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were overturned, and the authority to regulate abortion was returned to the states. At that time, Kentucky was one of the thirteen states that had in place a trigger law, which, if Roe v. Wade were overturned, would automatically ban all abortions unless it was medically mandatory to prevent the patient from permanent impairment to a “life-sustaining organ” or death. Thus, Kentucky’s trigger law activated on August 1, 2022 – effectively banning abortion in Kentucky. Neither Moyles nor Idaho offer instruction on treatment of pregnancy complications for states with strict bans. 

While the court’s decisions in Food and Drug Administration v Alliance for Hippocratic Medicine, Moyle v. United States, and United States v. Idaho, marks the end of these particular legal battles, the disputes are far from over. It is likely that the issues surrounding overall abortion access will be back before SCOTUS in the coming months and years. For now, however, mifepristone access remains legal in states where access to abortion still exists. Doctors in Idaho may continue to treat pregnancy complications in the emergency room, but further EMTALA-related challenges to state abortion bans seem likely to make their way through federal courts in the months and years to come.

[1] EMTALA requires hospitals to provide “stabilizing treatment” in medical emergencies, including urgent situations that are resolved by terminating pregnancy, such as ectopic pregnancies and miscarriages.

Valerie Michael is an Associate in McBrayer's Lexington office. Ms. Michael focuses her area of practice on healthcare law handling a wide variety of matters, such as healthcare professional licensure defense and compliance and regulatory matters. She also handles civil and criminal Medicare and Medicaid fraud cases, facility licensing, and certification. Ms. Michael can be reached at vmichael@mcbrayerfirm.com. 

Nancy Ngo is a 2024 Summer Associate with McBrayer's Louisville office.

Services may be performed by others. This article does not constitute legal advice.