Miyoko Pettit-Toledo, Assistant Professor at the William S. Richardson School of Law, joins producer/host Coralie Chun Matayoshi to discuss the future of abortion and in vitro fertilization in light of recent U.S. Supreme Court cases and a ruling by the Alabama Supreme Court, including whether mifepristone (one of two pills taken for an abortion) will remain legal, whether hospitals that participate in Medicare are required to stabilize a pregnant patient, including performing an abortion, in a state where abortion is banned, what to make of an Alabama Supreme Court ruling that frozen embryos are human beings with rights, and implications for the future of reproductive rights in Hawaii.
For 50 years, women had the right to choose, but two years ago, the U.S. Supreme Court overturned Roe v. Wade and abolished the federally protected constitutional right to an abortion. Within moments of the Supreme Court’s decision in the Dobbs case, Missouri became the first state to activate a trigger law banning abortion with no exception for rape or incest. Dozens of other states have instituted bans at different stages of pregnancy, and some have made it a felony to perform or enable access to an abortion. The U.S. Supreme Court just handed down 2 more decisions that will have major implications on women’s rights everywhere.
Q. Let’s start with the first case, Food and Drug Administration v. Alliance for Hippocratic Medicine, which concerns access and availability of mifepristone, one of two pills taken for an abortion. Nearly two-thirds of all abortions nationally use mifepristone. This drug can be taken at home or in any location, authorized for use in the first 10 weeks of pregnancy. Tell us more about this case. Why are medical abortions so valuable and what did the U.S. Supreme Court have to say about them?
Just months after Dobbs was issued in 2022, a newly-formed group of anti-abortion doctors called the Alliance for Hippocratic Medicine sued the Food and Drug Administration challenging its approval and regulation of mifepristone. Mifepristone, taken along with misoprostol, is an extremely safe medication that doctors can prescribe for a medical abortion. These pills can be mailed without visiting a clinic or doctor in person and instead can be procured through a telehealth consultation or by filling out online forms. After Dobbs, many pregnant people, primarily women, turned to medical abortions because they are less expensive and less invasive than surgical abortions. Mifepristone is also considered a vital drug for care after a miscarriage.
So why is the Food and Drug Administration being sued in this case? In 2000 -- over two decades before this case -- the FDA initially approved mifepristone. In 2016 and 2021, the FDA took regulatory actions relating to the drug, including allowing for medication abortions at up to 10 weeks of pregnancy instead of 7 weeks, and for mail delivery of mifepristone without the patient first seeing a clinician in person. The plaintiffs in this case, the anti-abortion groups and doctors, brought this case in Amarillo, Texas, before Judge Matthew Kacsmaryk, seeking, in part, to reverse FDA approval of mifepristone all together. Notably, however, these plaintiffs do not prescribe or use mifepristone, but they filed this lawsuit against the FDA to try to make it harder for other doctors to prescribe the drug and for women to receive it. Judge Kacsmaryk sided with the plaintiffs and declared mifepristone an unauthorized drug. The FDA appealed this decision to the Fifth Circuit Court of Appeals, which rebuffed the decision that mifepristone is an unauthorized drug and instead invalidated some of the more recent FDA regulations of the drug. That decision was then appealed to the Supreme Court. Using its discretion, the Supreme Court accepted the case. Rather than reaching the merits of the issues on appeal, the Supreme Court, in a unanimous decision (9-0) penned by Justice Brett Kavanaugh, dismissed the case on jurisdictional standing grounds. In other words, the Court decided that the Alliance for Hippocratic Medicine were not the proper plaintiffs to bring this suit in federal court because they could not show that they had been harmed in a way that can be traced to the FDA.
Q. So, what does this ruling mean as a practical matter for those seeking medical abortions in the United States? After the Court’s ruling, are medical abortions that use mifepristone still legal?
As a practical matter, this decision did not address any of the substantive merits of the challenge, such as whether the FDA’s approval of mifepristone is valid, or whether the FDA’s regulatory actions are valid. It’s just a decision on jurisdictional procedural grounds. What that means is we are back to the status quo before the case was ever filed. Nothing really changed. That status quo is the world after Dobbs where medication abortion is illegal in many red states but legal, accessible, and available in many blue states.
Q. Should this be considered a victory, then, for abortion rights activists?
The outcome could have been a lot worse if the Supreme Court had decided to end access to mifepristone entirely, but this should not be considered a “victory.” The case should have never made it this far. Additionally, it may be just a matter of time before the “proper” plaintiffs who have jurisdictional standing and a cognizable injury file a similar lawsuit in federal court, bringing this issue before the supermajority conservative Supreme Court again.
Q When cases are decided on procedural technicalities instead of on the merits, people want to know “what’s really going on?” So, what is really going on here?
“Procedure is power” and we need to understand the social, political, and economic context of the court’s ruling. This is a presidential election year where abortion issues have galvanized voters in a post-Dobbs world. Conservative Republicans saw what happened in the last mid-term elections after the Dobbs decision. Although we cannot read into the minds of the justices, it is possible that the supermajority conservative bloc of the Supreme Court may not want to raise the salience of abortion issues any more than they already have during this election year by accepting two abortion-related cases. Moreover, by pulling back on and reversing some of the extreme decisions out of Texas and the Fifth Circuit, as legal scholars have observed, it has the effect of making the Supreme Court look “reasonable” by comparison. The justices, however, are just delaying a decision on the merits -- just kicking the can down the road -- until the next case with the “proper” plaintiffs that satisfy the jurisdictional standing requirements come before them. This issue is likely to come back before the Court again. But if this Court decides to reach the merits of the issues on appeal, what is clear is that it will be after this November’s election.
Q. The U.S. Supreme Court also decided another case involving abortion rights and a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that participate in Medicare to provide “necessary stabilizing treatment” in an emergency regardless of the patient’s ability to pay. When a pregnant woman faces an emergency that is not an immediate threat to her life but poses grave threat to her health, is the hospital required to stabilize the patient, including performing an abortion, in a state where abortion is banned? Tell us more about this case.
In Moyle v. United States case, the question was whether EMTALA, which requires hospitals that participate in Medicare to provide “necessary stabilizing treatment,” including an abortion, in an emergency, overrides an Idaho law that bans most abortions and sets forth criminal and civil penalties for those who perform abortions in contravention of the state law. This is another case that was filed shortly after the Dobbs decision. A few months after Dobbs, the Biden administration issued guidance clarifying that EMTALA requires hospitals across the country to perform abortions if patients need them in medical emergencies to stabilize the health of a pregnant patient. The Biden administration then sued Idaho, arguing that its abortion ban clashes with EMTALA because Idaho only permits abortions in medical emergencies if a woman’s life is at risk, which is a threshold higher than EMTALA.
The lower court issued an injunction -- a court order mandating or prohibiting the defendant to do something -- that required Idaho to permit emergency abortion care where EMTALA requires it. In other words, under the lower court’s order, EMTALA preempts, or overrides, Idaho laws banning most abortions. Idaho appealed the lower court’s injunction order to the Ninth Circuit Court of Appeals, which scheduled but did not have the chance to hold its own hearing on the lower court’s injunction to block enforcement of the Idaho abortion restrictions. The case was appealed to the Supreme Court, and the Supreme Court accepted the case before the Ninth Circuit held its hearing. When the justices agreed to hear the case, the Supreme Court stayed -- or stopped the continuing enforcement of -- the lower court’s injunction order. This meant that the Idaho law applied and could be enforced, leaving Idaho doctors open to potential criminal penalties, including jail time, fines, and loss of medical licenses, and civil consequences, including potential suits by family members for up to $20,000 over an abortion procedure. With this uncertainty, Idaho doctors, at times, opted to airlift their pregnant patients out of state to seek the emergency abortions needed to stabilize their health. Pending the Court’s decision, over many months, there was chaos and confusion when pregnant patients’ lives and health faced moments of crisis.
After oral arguments in April 2024, the Court inadvertently posted its disposition on its website on Wednesday, June 26, 2024, and published it in nearly identical form the next day on Thursday, June 27, 2024. Six justices, in a per curiam opinion (i.e., no lead author), agreed to dissolve the Court’s stay, which had paused the lower court’s injunction to permit emergency abortion care in Idaho where EMTALA requires it. This means that the lower court’s injunction (blocking the enforcement of Idaho’s abortion ban) is now back in effect. The case will resume before the Ninth Circuit where it left off before the Court accepted the case. Five justices agreed to dismiss the case as improvidently granted. In other words, the Court dismissed the case because it took the case too early in the litigation process. That means that -- similar to the other abortion case involving the FDA -- the Court did not decide the merits of the questions and decided that it will not rule on whether the lower court’s injunction is correct, or whether EMTALA requires emergency abortion care to be available even where states like Idaho try to ban it. To be clear, the Court did NOT affirm that EMTALA protects abortion in emergency situations in all states, regardless of state laws or state policies. This only applies to Idaho…at least for now.
Q. What is the practical effect of the Court’s disposition on emergency abortion care in the United States?
The case is returned to the Ninth Circuit for further hearings. But the Ninth Circuit’s forthcoming decision could be appealed to the Supreme Court again.
In Idaho, emergency room doctors can provide abortion care if EMTALA requires it. To be clear, EMTALA still exists. In Idaho, hospitals must provide emergency care, including abortion care, if necessary to stabilize a patient’s health. Put differently, pregnant people can access abortion in a medical emergency. At least for now. The practical effect is that, with the uncertainty and the chaos of this pending appeal for so many months and the broader reproductive justice landscape reflected in this case and others, many doctors -- in Idaho and elsewhere -- may be nervous about their obligations under these state and federal laws, which continue to clash.
The on-the-ground reality is that pregnant patients are trying to obtain care and are sometimes unable to get it. Doctors are trying to provide care but without clear parameters and facing possible criminal penalties and civil consequences if they get it wrong. For doctors in Idaho, some are leaving the state because they feel like they cannot practice medicine in a way that is consistent with their ethical obligations, training, and judgment. But what this ruling also means is that in other states, like Texas, laws that ban abortions as stabilizing, health saving measures of care for pregnant patients are allowed, even if they conflict with the requirements under EMTALA, unless and until such other state laws are challenged in the federal courts. So, the law is murky in other states. Confusion, chaos, and crisis continue to interfere with the health and lives of pregnant patients and the practice of their medical providers. There remains a present danger for pregnant patients facing a medical emergency when they show up to an emergency room for treatment. That means that the kind of care that a pregnant patient may receive in the emergency room may depend on the patient’s zip code. Another practical effect is that this issue is not over. Like the mifepristone case involving the FDA, it is delaying a decision on the merits. It’s putting this decision off for another day -- perhaps after the upcoming presidential election. This is not a hypothetical situation as the federal government has already asked the Supreme Court to review a Texas law that clashes with EMTALA. We could see these issues come up again during the next Supreme Court term.
Q. That leads me back to the big picture question for this case: what’s really going on here?
Again, this is a presidential election year. It’s a radical idea that pregnant people can’t get emergency medical stabilizing care in the form of an abortion. It’s also an outrageous idea that states can force hospitals to deny such emergency, health-saving care for pregnant patients. Because abortion rights are one of the issues at the forefront of the upcoming election, it may not be convenient politically for the Court to issue such polarizing decisions right now. Particularly with what has happened in the last six months where we learned of heart-wrenching stories of pregnant women being helicoptered out of Idaho to receive emergency abortion care to save vital organs, their fertility, or even their lives. So the Court is dodging the issue by using this procedural mechanism -- dismissed as improvidently granted -- to dispose of the case. As Justice Ketanji Brown Jackson noted in her concurring and dissenting opinion, this procedural mechanism has become “a tool for the Court to use to avoid issues it does not want to decide.”
But, even if we set aside the socio-political circumstances of this disposition, two justices confirmed in their own legal writings that this IS what’s really going on. Justice Samuel Alito, in his dissent, wrote: “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.” Justice Jackson explained: “So, to be clear: Today’s decision is not a victory for pregnant patients in Idaho. It is delay. While this Court dawdles and the country waits, pregnant people experiencing medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.” Justice Jackson summed up the real-life impacts of the failure to affirm emergency abortion care under EMTALA at this critical moment -- pregnant patients continue to suffer and “will be paying the price.”
Effect on Hawaii
Q. Will these two Supreme Court cases affect abortion rights in Hawaii?
For now, the short answer is no. The FDA case reinstated the status quo, which means that after Dobbs, each state decides whether abortion is legal. Abortion (up until fetal viability, generally 24-26 weeks of pregnancy) will remain legal in Hawaii. Mifepristone will remain legal and accessible to pregnant people in Hawaii. The Moyle case did not decide anything on the merits, which means that abortion rights in Hawaii remain legal and intact. Under EMTALA, hospitals that participate in Medicare in Hawaii are required to provide emergency, health-saving care, including abortions, to pregnant patients irrespective of their ability to pay. Pregnant people can seek medical stabilizing treatment, including an abortion, in Hawaii emergency rooms. Under Hawaii law, there are currently no laws banning abortion that may conflict with EMTALA. So, there is no chaos or confusion like what we are seeing in Idaho, Texas, and other states on the mainland.
Q. Are there other challenges, pending or forthcoming, that could affect abortions rights in Hawaii?
The short answer is yes. The attacks on abortion rights continue across the country at both state and federal levels. Because these issues are far from over, we should not take these rights and circumstances for granted. Both issues from the cases above -- mifepristone or medication abortion and abortion care during a medical emergency -- are likely to come before the Supreme Court again. Perhaps as soon as next term. And even if the federal courts do not decide these issues, the upcoming presidential election could decide them for us.
For example, a Trump administration could enforce the Comstock Act, a 19th century law prohibiting the mailing of things for “indecent” or “immoral” use and reinvent that law as a total abortion ban nationwide by banning the mailing of mifepristone and other abortion drugs or tools. This would effectively override the state abortion protections in Hawaii. What this means is that mifepristone, misoprostol, and any surgical abortion tools could become illegal, unavailable, and inaccessible to pregnant people and medical providers in Hawaii based on the enforcement of this federal law. In other words, this federal law could be enforced in a manner to effectively ban all abortions in all 50 states. A Trump administration could also take the position that EMTALA does not require the availability of emergency stabilizing care for pregnant patients, which would affect health care in emergency rooms in 22 states (not including Hawaii) that restrict abortions.
We are also seeing some lawmakers, courts, and anti-abortion advocates advance arguments to codify the concept of “fetal personhood” -- the idea that every fertilized egg, embryo, fetus, or “unborn child” in utero at any stage of development is entitled to the full protections of the law and legal rights like any other person, including equal protection rights under the 14th Amendment. More than a third of states have laws to this effect already, but this concept could become federal law, which would apply in all 50 states and override state laws. Many reproductive rights advocates worry that these fetal personhood laws could be misused to criminally prosecute pregnant people for a miscarriage or for undergoing medically necessary procedures, including during emergencies where the pregnant patient’s life is in danger. This possibility is not unrealistic or far-fetched. Dobbs opened the door to these arguments, for the federal government to do this, and to create the kind of chaos we are seeing in the reproductive rights landscape. We continue to see increased efforts in legislation and litigation to advance the concept of “fetal personhood.”
Q. According to the Alabama Supreme Court, frozen embryos produced for in vitro fertilization (IVF) are human beings that have rights. Can you explain the implications of that ruling and the chaos that this has created for IVF clinics and owners of embryos when deciding whether to dispose of them?
Earlier this year, the Alabama Supreme Court set forth one of the most explicit pronouncements -- in a meaningful (and terrifying) way -- that embraced fetal personhood. In that case, three couples who had frozen embryos destroyed in an accident at a fertility clinic storage facility pursued wrongful death lawsuits against the hospital and clinic for their “extrauterine children.” The trial court initially dismissed the case for failure to state a claim, concluding that embryos that exist in vitro are not people or children for purposes of Alabama’s Wrongful Death of a Minor Act. That decision was appealed. The Alabama Supreme Court disagreed and ruled that frozen, non-implanted embryos count as “extra uterine children” under that state statute. This ruling drastically destabilized the landscape of reproductive autonomy and freedom. It was an illustration that more than just abortion rights are at risk in a post-Dobbs world. It created chaos and confusion and jeopardized procedures, like IVF, which used to be taken for granted. In the immediate aftermath of that decision, the precise implications of the ruling were not clear as the decision did not formally prohibit IVF in Alabama but also did not provide guidance on what was permitted going forward. As a result, some women who were literally about to have embryos implanted into their uteruses at IVF clinics in Alabama could not proceed. Concerns about the implications of this decision -- including civil and potential criminal liability for both doctors and their patients -- led several Alabama fertility clinics to pause IVF treatments. Mass chaos and confusion followed for patients that dreamed of having a family through IVF treatments.
Due to the outrage across the country and widespread backlash in response to the Alabama Supreme Court’s decision, about two weeks later, the Alabama Legislature passed a bill, which the Governor signed into law, that is narrow in scope to protect IVF providers from civil and criminal liability for embryo loss or damage during IVF treatments. But this legislation did not undo the effects of the court’s ruling. The court’s decision raised significant questions about the availability of IVF treatment and the future of IVF treatment in Alabama and perhaps beyond too. For example, there remain questions as to genetic testing, abnormalities, and selective reduction -- all routine parts of IVF treatment. There are questions as to whether un-implanted embryos need to be implanted, or whether and how they may need to be stored indefinitely if they are not implanted. And there are questions as to whether IVF is even allowed due to criminal statutes -- with implications that destroying a frozen, un-implanted embryo might be akin to murder or mishandling such an embryo might constitute child endangerment. There are many unresolved questions moving forward.
Q. What are the implications of this Alabama Supreme Court ruling for Hawaii?
As this is another state’s supreme court opinion, involving a state statute and interpretation of the Alabama State Constitution, there is likely no way for this decision to be appealed to the U.S. Supreme Court. And it does not apply to Hawaii. For now, IVF treatment is legal and available in Hawaii. There are currently no Hawaii state laws, or state court rulings, suggesting that fertilized eggs, frozen, un-implanted embryos, or fetuses at any developmental stage have personhood status with legal rights. But we should not take access to IVF treatments in Hawaii for granted. Hawaii is not completely immune from attempts to restrict reproductive rights. Like abortion and contraceptives, IVF exists along the same spectrum of reproductive health care. Dobbs opened the door to destabilize such reproductive freedoms. A federal law or U.S. Supreme Court ruling could potentially change all of this for us in Hawaii. We have seen that lawmakers and judges are intervening in medical spaces where they should not be and where they cannot be intimately involved and where there needs to be consultation with medical providers. Dobbs returned these kinds of issues to the people through elected lawmakers. It is important to have debates and to use one’s voice in democratic processes, to the extent that is possible. Abortion rights and reproductive freedoms will continue to be highly politicized issues for the upcoming election.
Indeed, last month, the Southern Baptist Convention, the annual meeting of the nation’s largest Protestant denomination, affirmed that IVF will certainly be an issue at the national level moving forward. Although many Republicans have tried to insulate themselves from the backlash after the Alabama Supreme Court opinion, the Southern Baptists passed a resolution formally opposing IVF and urging members “to advocate for the government to restrain actions inconsistent with the dignity and value of every human being, which necessarily includes frozen embryonic human beings.” This resolution effectively affirmed the Alabama Supreme Court’s ruling. Although many polls show that IVF has broad approval across political lines, with the upcoming election, it remains to be seen how this will all play out. One thing is sure, though, this is far from over. So Hawaii residents should not take IVF treatments and other reproductive freedoms for granted.
Q. Any concluding thoughts on these cases and the future of reproductive justice in Hawaii and beyond?
One thing to remember in all these cases and with these highly politicized, litigious issues is the people at the heart of them -- the women, pregnant patients, their families, the doctors, nurses, and other healthcare professionals. Two years after Dobbs, we are still trying to identify, understand, and process the myriad harms facing people that were caused and exacerbated by that decision. There is accumulating evidence showing a broad range of impacts on abortion care (as we see in these two cases, FDA and Moyle), IVF (as we see in the Alabama Supreme Court case), contraception care, medical students and their training, mental health, maternal healthcare and reproductive rights, gender-affirming care, and youth access to sex education… and so much more. Other rights, grounded in substantive due process or the 14th Amendment, especially those implicating the right to liberty and privacy, also remain at serious risk after the Dobbs decision. Such rights include the right to contraception, the right to engage in private, sexual acts, the right to same-sex marriage, the right to interracial marriage, and the right to direct the upbringing of one’s children. Even though we live in Hawaii where we enjoy broad protections under our state constitution and state laws, we should not take these rights for granted. As have seen in the cases discussed above, that could change swiftly. We need to remain vigilant to fight for and protect these rights.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.