Originally Published: August 13, 2024 7:00 a.m.

The Supreme Court punted on the major abortion cases it heard during the term that ended last month. And while the Court's inaction was initially celebrated, it means we head into the 2024 election with some of the biggest threats to the procedure delayed, but not permanently denied.

One case is all but certain to return; others have been steadily working their way up the federal judiciary in the meantime.

The Term's Unexploded Landmines

This term's Dobbs lite was the push to get mifepristone off the market across the country: FDA v. Alliance for Hippocratic Medicine. The case was lodged by a hastily organized group of anti-abortion doctors, none of whom could relay an episode where they were injured due to the availability of the medication, and for this reason teetered upon dubious standing. The doctors' lawyers were left to concoct hypotheticals in which their clients might one day have to treat a woman suffering from (actually very rare) mifepristone complications. 

The standing deficiencies — and the sheer tonnage of lawsuits that would be unleashed were the Court to greenlight such tenuous standing — proved too much. The justices were unanimous in their disapproval. 

But anti-abortion attorney Erin Hawley told reporters that she expected the case to continue, with intervening red states as the plaintiffs swapped in for the injury-free doctors. Experts TPM spoke with were skeptical that the gambit would be any more successful than the first attempt. 

"You need somebody harmed by the medication or the person who prescribed it — I think they'll have a hard time bringing that case again," Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, told TPM. "You might get Kacsmaryk to go along with some strategy for a while," Hill said, naming the infamous anti-abortion U.S. district judge in Texas, "but I don't think it's going anywhere."

Those same abortion law experts were less sanguine about the term's other major and unsettled abortion case, Moyle v. United States, a battle between federal emergency room requirements and state abortion bans. 

There, the Biden administration insists that The Emergency Medical Treatment and Labor Act (EMTALA), which mandates that emergency rooms stabilize patients in crisis, includes abortions if that's the care needed, no matter state restrictions. Petitioner Idaho's ban only includes an exception to avoid the death of the woman, which the government argues is a much narrower allowance. The situation on the ground backs up this reading of the conflict, as Idaho hospitals attest that they've been airlifting pregnant patients to neighboring states to avoid prosecution. 

Justice Ketanji Brown Jackson, writing alone on the per curiam decision to boot that case back to the 9th Circuit Court of Appeals, warned that "storm clouds loom ahead."

"Today's decision is not a victory for pregnant patients in Idaho," she wrote at the time. "It is delay."   

The case is bound to return to the Supreme Court, where conservatives made clear during oral argument that they were seeking rhetorical cover to let the state bans supersede the federal requirements by pretending that there is no daylight between what the two demand. 

It would be an enormous blow to the women most at risk from abortion bans, those far enough along in their pregnancies to be facing death or lasting injury if they can't get emergency abortions.