In the conservative Roberts Court, no news is typically good news for abortion rights supporters. So women who will seek abortions in the future received very good news on Monday when the justices announced that they will not hear Humble v. Planned Parenthood, a case challenging an Arizona abortion restriction that the challengers won in a lower court. The practical result of Monday’s decision-not-to-decide Humble is that a federal appeals court’s decision striking down a law restricting medication abortions will stand, at least for now.
Medication abortions are abortions that are induced by drugs, in contrast to surgical abortions. In 2000, the Food and Drug Administration approved a specific protocol for these medication abortions, even though doctors have since developed other protocols. The Arizona law at issue in this case requires that “any medication, drug or other substance used to induce an abortion is administered in compliance with the protocol that is authorized by the United States [F]ood and [D]rug [A]dministration.”
On the surface, this may seem like an attempt to prevent women from undergoing medical treatments that are untested and may prove unsafe. In reality, however, the cumbersome FDA-approval process often lags behind cutting edge medical science, and “off-label” use of drugs in a way that does not comport precisely with the FDA protocol is very common. As the United States Court of Appeals for the Ninth Circuit explained in its decision striking down the Arizona law, an off-label protocol is now considered the “best practice” by the medical community. Under this off-label protocol, “medication abortion now has a lower rate of ongoing pregnancies and fewer surgical interventions are necessary to complete the abortion procedure.”
The off-label protocol is also considered safe and effective through the ninth week of pregnancy, while the FDA-protocol should only be used through the seventh week. Thus, Arizona’s law could effectively prevent women in the eighth or ninth week of their pregnancy from obtaining a medication abortion.
Despite the fact that the Arizona law conflicts with medical consensus, the justices’ decision not to hear this case is a little surprising. In 2013, the justices briefly agreed to hear a similar case out of Oklahoma, although they later dismissed the appeal without deciding it after the Oklahoma Supreme Court held that the law in that case was much more expansive than the one in Arizona. Humble could have allowed them to reconsider an issue that they seemed poised to decide not very long ago.
In their petition asking the justices to hear the case, Arizona offers another reason for the Court to grant the petition — federal appeals courts disagree on how to handle recent laws seeking to restrict abortion. The Supreme Court is especially likely to take a case when their intervention is necessary to resolve a split between one or more federal appeals courts — otherwise, federal law or the Constitution could mean one thing in Arizona and something completely different in Texas. According to Arizona’s petition, “[f]ederal appellate courts have now reached contrary conclusions regarding how a reviewing court determines whether a facially challenged rational abortion regulation creates a substantial obstacle” in front of women seeking an abortion.
Arizona has a point. On the surface, Arizona’s medication abortion law seems quite distinct from the much more comprehensive Texas abortion restrictions that were upheld by the United States Court of Appeals for the Fifth Circuit. In reality, however, Texas’s efforts to limit which doctors can perform abortions and to impose expensive architectural restrictions on abortion clinics resemble the Arizona law in a crucial way. Both laws appear, at least superficially, to be attempts to regulate the safety of abortion. And both laws do far more to limit access to abortion than they do to protect women’s safety. As a federal trial judge explained regarding the Texas law, “there is no rational relationship between improved patient outcomes and” a key provision of Texas’s law.
As Arizona notes in its petition, the Ninth Circuit held that an abortion regulation may stand or fall based upon whether “’the burden a law imposes on a woman’s right to abortion’ outweighs ‘the strength of the state’s justification for the law.’” This standard is fundamentally inconsistent with Texas’s law and similar restrictions on the right to choose an abortion.
It is always dangerous to read too much into the justices’ decision not to take a case. Denials of this sort carry no precedential value. They are not decisions on the merits. And they can often turn on idiosyncratic traits of particular cases. The fact that the Supreme Court turned aside this abortion case does not mean that they will refuse to consider future cases.
But Monday’s decision does suggest that the justices do not see a unity among the various different kinds of abortion-restrictions-dressed-up-as-health-regulations that are increasingly common in the states. If the justices do not see such a unity, however, it is not entirely clear how that perception cuts. On the one hand, it means that the Court is unlikely to issue a sweeping decision striking down sham health laws as a class. On the other hand, it may mean that a conservative Supreme Court is willing to strike down some such restrictions — or at least decline to uphold them — rather than giving states a blanket license to enact anti-abortion laws in health law drag.