Has the Supreme Court found its limit on abortion?

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

The Supreme Court on Friday issued an order preserving access to a widely used abortion drug, blocking lower court rulings from going into effect that would have significantly limited its availability or taken it off the market entirely.

The decision comes in response to a ruling made by a federal judge in Texas earlier this month, who called for mifepristone — an abortion drug approved by the Food and Drug Administration 23 years ago and widely viewed by doctors to be extremely safe — to be taken off the market. An appeals court rolled back the judge’s total ban, but imposed new restrictions on how late into pregnancy the drug could be used and barred pharmacies from sending it to patients through the mail.

The Supreme Court’s intervention blocked all of these limits from going into effect while the issue makes its way through the appeals process, which could ultimately bring the case back to the high court for a full hearing several months from now.

Friday’s emergency order was issued on what’s known as the shadow docket – meaning that the justices aren’t required to disclose how they voted or explain the reasoning behind their decision. Two conservative justices — Clarence Thomas and Samuel Alito — issued dissents, although Alito was the only one to publish an opinion outlining his disagreement with the majority’s ruling.

Why there’s debate

The limited information provided by the justices means that we don’t know why they chose to keep mifepristone on the market, but legal experts say the decision may still provide some insight into where the court stands on abortion, less than a year after it ruled to repeal protections established in Roe v. Wade.

A number of court watchers say the justices’ decision to block the nationwide ban on mifepristone shows that, even though the court has swung dramatically to the right on the issue, its members are not eager to jump on any and all opportunities to limit abortion access. Some analysts also suggested that at least some of the conservatives on the court may have been chastened by the strong public support for abortion rights and could be looking for chances to push back against the idea that they’re anti-abortion extremists.

But others argue that a limited emergency order tells us nothing about how the justices might rule if they are asked to decide the case on its merits in the future. Some liberal legal experts say the original ruling out of Texas was based on such a radical interpretation of the law that the justices can easily reject it without closing off avenues to approve a variety of different abortion restrictions down the road.

What’s next

The next step in the legal battle over mifepristone will take place in May at the Fifth Circuit Court of Appeals, widely viewed to be one of the most conservative federal courts in the country. Most experts expect the Fifth Circuit’s ruling, whatever it ends up being, to make its way back to the Supreme Court eventually. Mifepristone will remain available in states where abortion is legal until the appeals process is complete.

Perspectives

The court may be moderating ever so slightly when it comes to abortion

“It would be a mistake to read Friday’s order as a definitive prediction of where they are headed. But there are reasons to think that an ambitious court has grown cautious.” — Adam Liptak,
New York Times

The court’s conservatives may simply be waiting for better anti-abortion cases

“The Supreme Court has not become any less conservative, or any less hostile to abortion. This order simply suggests that when it comes to undermining abortion, the conservative justices still know how to pick their cases.” — Mary Ziegler, Atlantic

The decision showed how empty the left’s attacks on the court’s legitimacy are

“America’s supposed descent into ‘The Handmaid’s Tale’ was put on pause. … Note the irony of progressives praising the same High Court they call a threat to democracy and women’s rights.” — Editorial, Wall Street Journal

The Supreme Court isn’t going to let rogue judges manufacture abortion bans out of thin air

“Friday’s stay sends a strong message to the lower courts that SCOTUS will not entertain this cynical attempt to impose new nationwide restrictions—and potentially even a ban—on abortion.” — Mark Joseph Stern, Slate

Some restrictions are too aggressive even for this conservative court

“The majority … evidently judged it best to preserve the availability of a drug to prescribers and the public than to endanger women and create chaos in the market for FDA-approved medications generally. Millions of women have found the drug overwhelmingly beneficial and safe.” — Laurence H. Tribe and Dennis Aftergut, Boston Globe

The justices may feel the need to moderate on abortion to protect their standing with the public

“The decision to maintain the status quo on mifepristone by the same court that struck down Roe v. Wade may be a quiet nod to the waning legitimacy of the court, and a concern about further backlash.” — Aziz Huq, Politico

It would be a mistake to make any real predictions based on such a limited ruling

“It is too soon to tell whether the Supreme Court’s sanity on what was essentially a procedural issue will translate into sanity on abortion in the longer run. The justices’ unexplained ruling was limited. And the issue will likely be back at the high court before long.” — Noah Feldman, Bloomberg

If the court truly thinks the case had no merit, it would have already killed it outright

“If a majority of the Court thought that this case is a loser on jurisdictional ground, then the Court should have issued a short per curiam opinion explaining why there was no jurisdiction. … Either the plaintiffs have standing, or they do not have standing. The Court could have put the case out of its misery, and avoided dragging the lower courts, and the country, through what may be a fruitless exercise.” — Josh Blackman, Reason

This was a small win for reproductive rights amid a wave of major anti-abortion victories

“This is a win, mainly because it’s not another devastating loss. For now.” — Elie Mystal, The Nation

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Photo illustration: Jack Forbes/Yahoo News; photos: Win McNamee/Getty Images