In an important, if likely temporary, victory for abortion rights, the Supreme Court took a major abortion case off its docket on Monday. The Court’s brief order does not explain the justices’ reason for doing so — it simply provides that “[t]he writ of certiorari is dismissed as improvidently granted. Nevertheless, it is likely that the justices decided that a recent Oklahoma Supreme Court decision muddied the issues presented by the case to such an extent that it made sense to wait to decide an important question regarding the ability of states to restrict the use of medication abortions.
Though the Supreme Court agreed to hear Cline v. Oklahoma Coalition for Reproductive Justice earlier this year, it also asked Oklahoma’s highest court to resolve two questions regarding the scope of an Oklahoma law banning certain forms of non-surgical abortions induced by medication. Last Tuesday, Oklahoma’s justices answered these questions by explaining that the state law at issue in Cline outlaws all medication abortions — including methods of terminating a pregnancy that were specifically approved by the federal Food and Drug Administration. Thus, if the U.S. Supreme Court were to rule on Cline they would have to answer the much larger question of whether an abortion procedure that’s specifically been approved by the federal government can be banned by a state, rather than considering a narrower question of whether specific methods of abortion lacking FDA sanction can be targeted by states.
In the short term, Monday’s order means that a conservative Supreme Court that’s shown considerable eagerness to restrict abortion rights in the past will not decide a major abortion case. In the medium term, however, the question of medication abortions is likely to be in front of the justices again very soon. Texas recently enacted a law that, among other things, includes restrictions on medication abortions that are narrower than the restrictions in Oklahoma. A challenge to the Texas law is barreling towards the Supreme Court, and would likely present the justices with the opportunity to decide a medication abortion case if they choose to do so.
Nevertheless, the fact that the justices turned aside an opportunity to uphold the very broad Oklahoma law may offer a small ray of hope to supporters of abortion rights. For the moment, the justices seem uninterested in endorsing an expansive ban on medication abortions, even if there may be five votes to uphold a narrower ban like the one in Texas.