Following the June 2022 decision in Dobbs v. Jackson Women’s Health Organization, which restored the rights of unborn children and allowed states to protect them, conservative judges have emphasized the importance of elected representatives in deciding the issue of abortion.
However, a recent Texas hearing on medication abortions has shown that non-SCOTUS judges still have a significant impact on access to abortion in America. It is possible that another legal battle over reproductive rights could soon land at the high court due to the ongoing dispute surrounding abortion drugs.
At the time, Justice Brett Kavanaugh stated that the issue of abortion is one for state officials to decide, rather than for judges to undertake “difficult moral and policy questions” related to when a woman is allowed to end a pregnancy:
“The controversy would now be one for state officials and that judges would no longer undertake the “difficult moral and policy questions” related to when a woman is allowed to end a pregnancy.”
Currently, a federal judge, Matthew Kacsmaryk, is considering a case brought by anti-abortion organizations and physicians seeking to undo the FDA’s approval of mifepristone, a drug used to abort a fetus. The challengers are asking for an order to withdraw approval for the drug. This case demonstrates the potential for a single federal judge, rather than an elected state legislature, to shut down access to an abortion drug and protect women seeking to end pregnancies, even in states where the procedure is still legal:
“Without an injunction, these dangerous drugs will result in physical complications, emotional trauma, and death for women.”
Conservative judges who secured the 5-4 ruling in Dobbs v. Jackson Women’s Health Organization recognize the importance of leaving the decision about abortion to elected representatives rather than the courts. The dissenting justices, in that case, warned that it would keep federal judges in “the sphere of controversy,” leading them “to wade further into hotly contested issues, including moral and philosophical ones.” The ongoing legal battle surrounding abortion drugs shows that SCOTUS will continue to play a central role in ensuring that the rights of unborn children are protected and that women receive safe and appropriate medical care.