Will the Supreme Court choose the middle ground on abortion?

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Supreme Court abortion
Supporters of legal abortion and pro-life demonstrators hold signs outside the U.S. Supreme Court during the annual March for Life in Washington Jan. 20, 2023, for the first time since the U.S. Supreme Court overturned Roe v. Wade abortion decision. (OSV News photo/Jonathan Ernst, Reuters)

Is the Supreme Court seeking a judicial middle ground in the abortion wars — a stance that pleases and displeases pro-lifers and pro-choicers alike, although for opposite reasons? If so, two pending cases could provide opportunity for it to move in that direction.

In one, the court is being asked to reverse a decision by the conservative 5th Circuit Court of Appeals approving restrictions on the abortion drug Mifepristone. The controversy originated with a group of pro-life doctors who challenged Food and Drug Administration actions making Mifepristone easier to obtain. The case is Food and Drug Administration v. Alliance for Hippocratic Medicine.

The second case involves an Idaho law barring abortions in hospital emergency rooms except to save the mother’s life. The Justice Department, acting on behalf of the Department of Health and Human Services, argues that a federal law called the Emergency Medical Treatment and Labor Act overrides Idaho law and requires a permissive approach to abortion. The case is Moyle v. United States — Mike Moyle being Speaker of the Idaho House of Representatives — and comes to the Supreme Court on appeal from a ruling against Idaho by the liberal 9th Circuit Court of Appeals.


If the Supreme Court does have it in mind to demonstrate some version of impartiality, the Mifepristone case offers a simple way to please the pro-abortion side — hold that the unnamed anti-Mifepristone doctors lack legal standing since they haven’t suffered substantial injury through the drug’s availability. The justices appeared to lean that way during oral argument on March 26.

Supposing the Supreme Court goes that route, a ruling based on a technical issue like “standing” would be a win for pro-choicers and a defeat for pro-lifers, though something less than unconditional vindication of Mifepristone.

State restrictions to abortion

The central question in the Idaho case is how strongly the Supreme Court will press the state’s rights rationale of its decision two years ago in Dobbs v. Jackson Women’s Health. In that ruling the court rejected the idea that there is a constitutional right to abortion and held that individual states can impose restrictions on the procedure.

Moyle v. United States puts that line of reasoning to the test. The Justice Department argues that a federal law called the Emergency Medical Treatment and Labor Act overrides Idaho’s law and requires easily accessible emergency room abortions. Idaho calls that a “novel legal theory” floated by Health and Human Services to comply with White House instructions after Dobbs, telling federal agencies to promote expanded access to abortion.

Prior to 1973, Idaho argues, states could address the “profound moral issue” of abortion as they saw fit. Then the Supreme Court in Roe v. Wade made itself the champion of abortion nationwide. But, the state says, that changed two years ago in Dobbs when the court reversed Roe and affirmed the right of states to enact laws reflecting the “widely divergent views” on abortion that actually exist. “Idaho’s Defense of Life Act is one such law,” the state concludes.

Among many friend of the court briefs filed with the Supreme Court in Moyle is one by the United States Conference of Catholic Bishops joined by several Catholic health care groups. After analyzing the federal law used by the government to attack Idaho’s law, the USCCB brief concludes that to claim the statute supports abortion contradicts its “unambiguous text and intent” to the contrary.

The court heard oral arguments in Moyle v. United States on April 24. Decisions in both these cases are expected before the court’s term ends in June. 

Russell Shaw

Russell Shaw writes from Maryland.