Review of Recent Abortion Court Cases

U.S. Supreme Court

During its 2024 term, the U.S. Supreme Court (SCOTUS) considered four cases related to abortion. Two cases were reversed and remanded, and two were dismissed, which, in effect, allowed abortion access to stand.

In the consolidated cases of Food and Drug Administration v. Alliance for Hippocratic Medicine (2024) and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine (2024), abortion opponents challenged the U.S. Food and Drug Administration’s expansion of access to mifepristone, an abortion medication. SCOTUS unanimously reversed and remanded the case to the Fifth Circuit Court of Appeals due to the plaintiffs’ lack of standing or credible injury in the matter. They did not rule on the merits of the case.

SCOTUS dismissed the consolidated cases of Moyle v. United States (2024) and Idaho v. United States (2024), and by doing so, has allowed emergency abortions to proceed in Idaho. The cases were dismissed as “improvidently,” or mistakenly, granted because the Ninth Circuit Court of Appeals (Ninth Circuit) had not yet issued its rulings. The cases have been returned to the lower court. The cases concern the 1986 Emergency Medical Treatment and Labor Act (EMTALA), which requires emergency rooms to provide “necessary stabilizing treatment” to patients who arrive with an “emergency medical condition.” The issue in these cases is whether Idaho’s extensive abortion ban, where the only exception is to prevent the death of the mother, conflicts with this responsibility. The U.S. Department of Justice sued the State of Idaho in 2022, and a preliminary injunction was issued, which the Ninth Circuit has preserved as it processes its final decision. While the injunction remains in effect, EMTALA obligations will supersede the state’s emergency abortion ban.

Kansas Supreme Court

On July 5, 2024, the Kansas Supreme Court released a pair of decisions that upheld the right to abortion under the Kansas Constitution.

Hodes & Nauser, MDs, P.A. v. Kobach (2024) held that the Kansas statute banning dilation and evacuation (D&E) abortions violates the state constitutional right to terminate a pregnancy. In 2015, SB 95 banned second-trimester D&E abortions except when necessary for the life and health of the mother, but the statute was enjoined. The State appealed, and in the 2019 case, Hodes & Nauser, MDs, P.A. v. Schmidt, referred to as Hodes I, the Kansas Supreme Court affirmed the injunction and directed the lower court to assess whether the statute could withstand strict scrutiny. Strict scrutiny is the most rigorous standard of judicial review, and it requires the State to demonstrate that its actions are furthering a “compelling government interest” in a way that is “narrowly tailored” to that interest. The district court found SB 95 was not narrowly tailored enough to pass strict scrutiny. The Kansas Supreme Court affirmed the lower court’s decision and struck down the statute as an unconstitutional violation of Section 1 of the Kansas Constitution Bill of Rights.

Hodes & Nauser, MDs, P.A. v. Stanek (2024) held that statutes from 2011 that created additional licensure requirements and regulations for abortion provider facilities do not survive strict scrutiny and are unconstitutional. The Kansas Supreme Court reinforced its Hodes I conclusion that the Kansas Constitution protects an inalienable natural right of personal autonomy, which includes the right to abortion.

Pending Cases

A legal challenge to HB 2749, which became law July 1, 2024, and requires abortion providers to survey patients as to why they seek an abortion, has been added to the pending challenge against the Woman’s-Right-to-Know Act (KSA 65-6709), which includes a mandatory 24-hour waiting period and certain patient notification requirements. Sections of the Woman’s-Right-to-Know Act were temporarily enjoined in 2023, and the injunction is currently being reviewed by the appellate court. In July 2024, the parties in the case announced an agreement to not enforce the law until the district court publishes a decision.