This will be a somewhat shorter post than yesterday's: not because its material is any less important, but simply because somewhat less demands to be said about the two cases I feature today than about yesterday's unholy trinity.
First then, last month the Supreme Court dismissed FDA v. Alliance for Hippocratic Medicine, a lawsuit in which the named Alliance sought to restrict access to the pill mifepristone.
Non-surgical abortions are typically conducted with a two-pill regimen: mifepristone followed by misoprostol. This seems to be the most effective (and an extraordinarily safe) way of producing a complete abortion up to 65 days after menstrual bleeding has stopped. That of course is precisely why the "Alliance" wanted to stop it, but they made a pretextual claim that they were trying to protect the safety of women taken mifepristone and they said the FDA had not properly ascertained its safety.
The Justices were not impressed by the Alliance's argument. They were especially unimpressed that the Alliance consisted of doctors who had never prescribed mifepristone and had never treated any women who had. This meant, they said, that the Alliance had no standing to bring this lawsuit.
The fifth circuit had blown past the dubious nature of standing in granting much of the relief the Alliance desired. The Supreme Court reversed that, unanimously, in an opinion by Judge Kavanaugh, in an opinion that was something of a slap at the fifth circuit. Justice Thomas concurred. He wrote separately, he said, only to say takes a narrower view of standing that the rest of the court. Not only don't these plaintiffs have standing, but neither do lots of other plaintiffs to whom the court would otherwise we tempted to extend it. He rails on for a bit against "associational standing" in general.
"If a single member of an association has suffered an injury, our doctrine permits that association to seek relief for its entire membership— even if the association has tens of millions of other, noninjured members," Thomas writes. And he is plainly unhappy about that. Nonetheless, the Alliance failed to produce even that "single member," so Thomas is getting beyond his skis here.
The other big abortion-related case this term came to it because in August 2022 a federal district court judge blocked the state of Idaho from enforcing provisions of its abortion law that conflict with the provision at Idaho's hospital's emergency units of the care required under a federal law, the Emergency Medical Treatment and Labor Act (EMTALA).
Attorneys for the state and the federal government argued the case, actually a pair of cases [Moyle v. US and Idaho v. United States], before the US Supreme Court in late April 2024. I will simply call the pair of cases Moyle here.
Oddly, the court's decision on this pair of cases was briefly (and, we are told accidentally) posted on the SCOTUS website Wednesday, June 26. After a long history of deliberately and successfully keeping its secrets, the Supreme Court in the 2020s as seen two big abortion decisions become public before they were supposed to become public knowledge in the proper order. It is difficult to know what to make of this. At a minimum, one could say that if security precautions were put in place after Dobbs ... they failed.
At any rate, the Moyle leak (for lack of a better term), like the Dobbs leak of two years ago, was accurate. In due course, the court made the leaked version official. So let us say no more of the odd way Moyle became known, and speak to WHAT it is we now know.
We know that this was a DIG decision (dismissed as improvidently granted). We know that pregnant women in Idaho, faced with severe bodily harm (short of imminent death!) that an abortion could prevent, will be able to get that abortion, and they will be able to get it without being airlifted out of state. A district court has said as much in an injunction that the Supreme Court's DIG lifts the stay on that injunction.
Because of the peculiar procedural posture of this case and the narrowness of the holding, that does not good for any woman of any of the states other than Idaho that have created harsh anti-abortion laws over the last two years. We can not even be sure that this will be true in Idaho for long, since the per curiam decision is simply that the court improvidently granted cert.
"Granting cert" means, in vernacular English, taking an appeal. A court can dismiss an "improvidently granted" case without explaining itself further. We DIG it because we just don't dig it anymore. That is what SCOTUS has done with regard to Moyle. Although the district court did the same thing, and the left of the stay keeps its sanity in position, this has no precedential weight.
Three Justices wanted to decide on the merits, in favor of federal law (and the substantive rightness of that injunction). Another block of three wanted to decide on the merits, upholding the state law and striking that injunction. A third block (Chief Justice Roberts along with Coney Barrett and Brett Kavanaugh) said that the arguments made by the lawyers on both sides have shifted, that there need to be further proceedings in the lower Courts -- apparently so those slick lawyers will be forced to cement their their theories in place -- before this case can properly be decided.
If you are getting the idea that the post Dobbs jurisprudence as to human reproduction is a hot mess: you are very astute.
Mary Ziegler, America's foremost historian of the law on abortion, said in an interview she gave the LS Times recently, that in our future the fate of abortion, from one legislative or court session to another, "depends on who's deciding and I don't mean in the classic 'It's my body, my choice' way of who's deciding. We've seen to date that for the most part when you ask voters directly, they want abortions to be broadly legal, particularly early in pregnancy and increasingly later in pregnancy as well....But I think there are lots of possibilities where that doesn't happen."
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Has anything good, positive for the future of the United States, happened in the latest session of SCOTUS? I can't call either of the abortion decisions "good" in that simple sense because in both cases the court avoided a disastrous ruling only by putting the issue off until a later day. Is there anything simply good that has happened? Well ... yes. We will encounter some goodness tomorrow.
Christopher, regarding Moyle, you write, "Another block of three wanted to decide on the merits, upholding the state law and striking that injunction." To clarify, the Supreme Court had temporarily allowed the Idaho law to supersede the federal law, and in its per curiam decision it reversed that. The block of three who wanted to uphold that state law therefore wanted to retain the status quo. I don't know whether that means that they wanted to strike the injunction; it's confusing.
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