On Thursday evening, the Court deferred consideration of the Trump administration’s request to put on hold a lower court ruling protecting safe access to medication abortion during the pandemic. The Court’s clumsy punt did not explain why this particular case was different from the many times when the Court has granted similar requests by the Trump administration to delay adverse rulings. The Court’s attempt to duck the issue for the time being did, however, underscore the stakes of Judge Amy Coney Barrett’s nomination, which the Senate Judiciary Committee will consider next week. A Court that included a Justice Barrett almost certainly would allow the administration to restrict safe access to medication abortion during the pandemic.
Food and Drug Administration v. American College of Obstetricians and Gynecologists involves a challenge to a federal regulation that ordinarily requires patients to travel, sometimes hours away, to a hospital, clinic, or medical office in order to sign a form and pick up the medication mifepristone. Mifepristone is a safe and effective medication used to end early pregnancy; the National Academies of Sciences, Engineering, and Medicine report on the safety and quality of abortion care reported that the effects of the medication are similar in magnitude to the risks of taking common over-the-counter medications such as aspirin or ibuprofen. The rule does not require in-person examination or counseling. The American College of Obstetricians and Gynecologists obtained an injunction preventing the federal government from enforcing the requirement for in-person pickups in the midst of the coronavirus pandemic, which has now killed over 210,000 Americans.
The district court enjoined enforcement of the regulation for the duration of the coronavirus public health emergency. The U.S. Court of Appeals for the Fourth Circuit declined to stay the ruling, leaving the injunction against the requirement in effect.
The Trump administration then sought a stay in the U.S. Supreme Court that would have allowed it to enforce the in-person pick up requirement during the pandemic.
The Trump administration has been notoriously aggressive in asking the Supreme Court to stay lower court rulings it dislikes, as Professor Stephen Vladeck has documented. The administration often succeeds in these requests. The Court has allowed the administration to proceed with the construction of the border wall, to enforce its public charge rule, to implement its “Remain in Mexico” policy, to carry out federal executions, and to implement its ban on transgender service members all while those policies are being challenged, and after lower courts had determined that all of the policies were likely illegal. (Previously, the Court allowed the government to partially implement its Muslim ban before the Court later upheld a subsequent version of the ban.)
This time, however, the Court punted. The Court explained that the correct course of action was for the government to first seek relief in the district court, and then the court of appeals, before coming to the Supreme Court. The unsigned, per curiam order stated that “[A] more comprehensive record would aid this Court’s review. The Court will therefore hold the Government’s application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed.” The Court also directed the district court to rule “within 40 days of receiving the Government’s submission.” Justice Alito and Justice Thomas dissented and would have granted the stay application now.
Requiring parties to first proceed in the lower courts was an option in almost all of the prior stay applications the Court had previously considered and granted. Indeed, that would have been the ordinary course for the Court to take—to allow the lower courts to handle the government’s request for stays and other forms of relief from lower court injunctions. It’s possible, but unlikely, that this case happened to be the only one where some additional record development was required before the Court acted on the stay application.
More likely is that the eight-member Court was unable or unwilling to act on the application before the election. It is possible that the Court evenly divided on the stay application, in which case Barrett would cast the deciding vote. The Chief Justice has voted with the more liberal justices on several stay applications, including in cases involving the Trump administration and in cases involving coronavirus-related restrictions. He voted with his more liberal colleagues to deny a stay in the case where the Trump administration’s restrictions on asylum were challenged. (The administration would have prohibited arrivals to the United States from applying for asylum if they did not enter through a port of entry.) More recently, he joined with his more liberal colleagues to leave in place a lower court decision that upheld some of California’s coronavirus-related restrictions. All of his conservative colleagues would have overturned the lower court decision.
With Justice Ginsburg no longer on the Court, however, there would have been a 4-4 divide in those cases between the more liberal wing, joined by the Chief Justice, on one side and the four conservatives on the other. It’s possible that the Court’s decision not to act on the government’s stay application reflects a 4-4 divide between those groups.
If Barrett does replace Justice Ginsburg, there is little question what she would do in the case involving medication abortion given her prior writings, which include judicial decisions. As an academic, Barrett wrote that “[b]oth the state [that doesn’t prosecute] and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child.” As a judge, Barrett would have revisited a decision that invalidated Indiana’s parental notification requirement. The law required teenagers to notify their parents before they obtained an abortion. The Supreme Court has previously stated that these parental notification laws are constitutional only if they are accompanied by a judicial bypass provision, which allows minors to go to court and obtain a ruling that declares notifying their parents is not in their best interest. The Indiana law did not even include this option. Barrett also would have revisited decisions invalidating Indiana’s fetal cremation and burial requirements, and its law prohibiting abortions on the basis of certain characteristics. Barrett has also been extremely deferential to the Trump administration; she voted to uphold its notorious public charge rule.
Another possibility is that the Court is trying to avoid issuing a controversial decision on abortion in the weeks before the election. The Court has already become an election issue, as Senator Mitch McConnell prioritized confirming the president’s nominee as quickly as possible over hammering out a coronavirus relief package for the country. At the most recent presidential debate, President Trump deflected concerns that Roe v. Wade was on the ballot by insisting that no abortion cases were currently before the Court. A majority of the Court may have wanted to keep it that way while so much public focus uncomfortably remains on them.
This perfunctory, unsigned order nonetheless underscores the stakes of Judge Barrett’s confirmation for the country, specifically on issues of reproductive justice. The Supreme Court’s increasingly consequential “shadow docket,” which includes cases that are decided without full briefing and argument, is one area where Barrett will have an immediate impact. Republicans would like to pretend that Roe isn’t on the ballot and Barrett’s views on abortion are somehow unknown. But one of the first cases before her may give her the opportunity to restrict safe access to abortion, and that will only be the beginning.