The Supreme Court Could Hear Not One, But Two, Abortion Cases This Term

The nine unelected Justices are back in action. Here's what fresh hell awaits us.

The Supreme Court Could Hear Not One, But Two, Abortion Cases This Term
Photo:Getty (Getty Images)

It’s the first Monday in October, which (unfortunately) means that it’s the start of a new Supreme Court term. If you somehow forgot, the court did a lot of damage in the last two years by overturning Roe v. Wade, dramatically expanding gun rights in 2022, and taking a wrecking ball to civil rights protections earlier this year. It could hear two suits involving abortion, as well as some other doozies.

One abortion case is already sitting in the court’s queue of cases to consider, but it’s not clear when we’ll find out if they’ll take it. With the Dobbs case that overturned Roe, the justices put it on their private “conference” schedule at least 15 times before voting to take it up.

Here are the cases we’re watching:

Abortion pills

Back in November, a right-wing Christian legal firm filed a federal lawsuit on behalf of anti-abortion doctors against the Food and Drug Administration, arguing that the agency had improperly approved the abortion drug mifepristone way back in 2000. The case is pure nonsense and the lawyers filed it in a district where they knew they’d get Judge Matthew Kacsmaryk, a former religious liberty lawyer.

Kacsmaryk wanted to pull mifepristone from the market entirely, but, in August, an appeals court said the statute of limitations had passed to challenge the 2000 approval and limited the case to the question of whether abortion pills can be sent by mail and prescribed through 10 weeks of pregnancy, rather than seven—which was the original cutoff before the FDA approved 10 weeks in 2016. (An April Supreme Court order blocked any changes to access during litigation.) It would essentially mean rolling back the clock seven years on mifepristone access, despite medical research showing it’s safe to take later in pregnancy and prescribe via telemedicine.

The FDA has already appealed the most recent ruling to the Supreme Court asking it to strike down the proposed changes to mifepristone, so now we wait to see if the court accepts the case. It seems likely that they will, which could set up a decision in June 2024, in the thick of the presidential election where Republicans are facing questions about their plans to ban abortion nationwide.

Emergency abortions

There have been legal disputes over whether hospitals in states with abortion bans have to provide abortions when a pregnant person’s health or life is threatened. (Pregnancy can be life-threatening in cases of pre-eclampsia, incomplete miscarriages, ectopic pregnancies, and more.) The Biden administration has argued that a federal law—the Emergency Medical Treatment and Active Labor Act or EMTALA—mandates that hospitals provide stabilizing care in emergencies.

The Biden administration sued the state of Idaho in August 2022, saying its extremely strict criminal ban was likely to discourage doctors from providing emergency care and thereby violated EMTALA. A district court sided with the administration, but last week, three Trump-appointed judges on an appeals court said Idaho can enforce its ban against physicians. That means ER doctors are no longer shielded from prosecution for trying to save their pregnant patients’ lives with abortion care. Politico notes that the next step is either for the administration to ask an 11-judge panel of the court to hear the case or appeal it up to SCOTUS.

Gun rights for domestic abusers

The day before the court overturned Roe, it released an opinion in a huge gun case written by Justice Clarence Thomas which basically said that restrictions on gun ownership are unconstitutional if they didn’t have a historical analog. (The case was N.Y. State Rifle & Pistol Association v. Bruen.) After that ruling, an appeals court declared that laws preventing people subject to domestic violence restraining orders from possessing guns are unconstitutional.

“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” Circuit Judge Cory T. Wilson wrote. “The question is whether…a specific statute that does so is constitutional under the Second Amendment of the United States Constitution. In the light of [Bruen], it is not.” In effect, because the founders didn’t address domestic violence, modern lawmakers can’t either.

The Department of Justice appealed the decision and now the court will hear the case, United States v. Rahimi, on November 7. To underscore just how high the stakes of this case are, the defendant, Zackey Rahimi, has assaulted at least two women with guns and once shot at a woman in a parking lot. His restraining order barred him from “harassing, stalking, or threatening his ex-girlfriend and their child.”

Disability rights, and other civil rights

Deborah Laufer is a disabled advocate who uses a wheelchair and has filed more than 600 lawsuits, many of which are against small hotels that she claims aren’t complying with regulations that require them to list online if their rooms are accessible to people with disabilities. Her case, Acheson Hotels v. Laufer, will determine whether she can sue hotels for violating the Americans with Disabilities Act (ADA) even if she doesn’t have any intention of staying there.

Advocates are concerned that the court could gut one of the ADA’s main enforcement mechanisms, which is people suing through so-called “tester cases.” They think Laufer should be able to sue regardless of whether she plans to travel to these hotels since lawsuits are an important way to enforce the ADA. Tester plaintiffs have their roots in lawsuits over housing discrimination, where a white person and a Black person would go to the same apartment complexes and ask if units were available. For that reason, people are afraid of the case’s impact on other areas of civil rights law, since the court’s ruling could potentially limit tester cases. Arguments are set for October 4.

Cases related to sugar daddies and ethical breaches

The latest ProPublica story on Justice Thomas detailed how he went to the bougie Koch network annual donors summit at least twice, in 2008 and 2018, where he hung out with the billionaire libertarian Koch brothers, Charles and David. The Koch network has long wanted the court to overturn the 1984 case Chevron v. Natural Resources Defense Council, which gives government agencies the authority to make regulations to enforce laws passed by Congress, and they hate it because they want agencies to have less power than they do now.

In February 2020, Thomas renounced his decision in a prior case that expanded Chevron. Then, in May of this year, the Supreme Court agreed to hear a case that could overturn the nearly 40-year precedent. Koch network attorneys are representing the plaintiffs in the case, called Loper Bright Enterprises v. Raimondo. What an incredible set of coincidences!

Then there’s good ol’ Sam. Justice Samuel Alito gave a smarmy “interview” to the Wall Street Journal opinion section and one of his interviewers was David B. Rivkin, who will argue a tax case this term. A group of 10 Democratic senators on the Judiciary Committee sent a letter asking Roberts to ensure that Alito recused from the case, which Alito has refused to do. (Rivkin is also representing conservative legal kingpin Leonard Leo in the Washington D.C. Attorney General’s investigation into him, and Leo helped Alito through his 2006 confirmation process.)

The case is called Moore v. United States and it’s designed to preemptively ban Congress from passing a wealth tax. Conservative think tanks connected to both Thomas sugar daddy Harlan Crow and Alito benefactor Paul Singer have filed amicus briefs urging the court to side with the plaintiff. And both Roberts and Alito—the only two justices who own individual stocks—have a personal financial interest in the case. The Lever noted that the two “own shares in 19 companies that could see combined tax relief of more than $30 billion if the court issues a broad ruling in the Moore v. United States tax case and strikes down a one-time corporate tax imposed in 2017.”

I wrote last October that “the high court is officially an unpopular institution mired in scandal that a majority of people think should be expanded and reformed. None of that will stop them from unleashing more retrograde chaos on the United States in the meantime.” This remains true one year later. Lord help us all.

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