The Supreme Court returns on October 2 for a new term that may bring landmark decisions on abortion and transgender rights ahead of the 2024 presidential election.
Since Roe v. Wade was overturned in June, 2022, the court’s sharply divided opinion on abortion is likely to remain a major public focus in the next year.
The judges are set to decide on the availability of the abortion pill, mifepristone, which is used in more than half of all American abortions. With more than 600,000 abortions in America per year, mifepristone is used in over 300,000 of them—highlighting the high stakes in the Supreme Court decision.
The court’s new term lasts until the first Monday in October, 2024. As it generally releases the majority of its decisions in mid-June, its rulings will be very much alive for voters in the run up to the election in November, 2024.
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Danco Laboratories v. Alliance for Hippocratic Medicine
Danco Laboratories, the maker of Mifeprex, the branded name of mifepristone, petitioned the court this month to review a lower court’s limits on distributing mifepristone. Danco is strongly backed by the Department of Justice, which has submitted its own Supreme Court brief in favor of easier distribution of the pill.
In a submission to the court on September 8, the DOJ claimed there were “serious legal errors” in the 5th Circuit’s decision to limit the availability of mifepristone.
That sets the stage for a possible final resolution of the issue—with a Supreme Court decision likely by next summer.
In a separate submission, Solicitor General Elizabeth Prelogar wrote that the lower court decision marked the first time a court has ever second-guessed the expert judgment of the Food and Drug Administration in approving a drug.
Unless the lower court decision was reversed, it “would impose grave harms on the government, mifepristone’s sponsors, women seeking medication abortions, and the public,” she wrote.
Ryan Stitzlein, Vice President of Political and Government Relations at the pro-choice group, Reproductive Freedom for All, told Newsweek that he wants healthcare providers to determine if mifepristone is safe, not lawyers.
“Mifepristone has been safely used for decades. In fact, it’s safer than Tylenol (paracetamol). No court has ever [previously] ordered the FDA to take a medication off the market because of their own judgment about the safety of the medication…This fight is long from over, and we thank the Biden-Harris administration for their commitment to keeping mifepristone available,” he said.
That view is strongly rejected by Carolyn McDonnell, litigation counsel for pro-life group, Americans United For Life.
She said that the FDA and Danco have challenged the Fifth Circuit’s decision “that reinstated safeguards for women and girls seeking chemical abortion drugs.”
“These safeguards include a follow-up visit to ensure a woman has not retained fetal tissue or suffered complications from taking the drugs,” she said. “By asking for the removal of these safeguards, the petitioners are pursuing a radical abortion policy at the expense of the health and safety of women and girls.”
The Supreme Court’s overturning of Roe v. Wade appeared to dent support for Republicans in 2022, which may have contributed to their lackluster performance in the midterms. The results prompted the party to launch a months-long investigation into how they can improve performance in upcoming elections. If the Supreme Court does limit the distribution of mifepristone, it could play badly with swing voters, while galvanizing support among pro-life voters.
The court could also agree to review conflicting appeals court decisions on medical treatment for transgendered minors.
Brandt et al v. Rutledge
Twenty-one states have bans on hormone therapy, surgery or other medical treatments for such minors, but some of the bans have been halted by lower courts.
In just one small part of the lower courts’ varying actions on the issue, the 11th Circuit Court of Appeals reinstated Alabama’s ban on puberty blockers and hormones, while a district court judge blocked part of Georgia’s ban on most medical treatments for transgendered minors.
Federal attorney Colleen Kerwick told Newsweek that both cases question whether the Food and Drug Administration “has the final say on abortion rights and gender affirming treatments.”
She said these are “hot button topics” for the court to consider before the presidential election.
“The life of an unborn child is pitted against maternal rights; and children’s rights to decide their sex are pitted against parental rights to make decisions for them,” Kerwick said.
She said that the Supreme Court’s intervention “may serve as a big distraction to other political matters” before the election.