The U.S. Supreme Court in Washington, D.C. (Photo by Al Drago/Getty Images)
Last week’s unanimous decision by the U.S. Supreme Court to maintain access to mifepristone, a medication used for 60% of all abortions, was less about protecting women’s reproductive rights, and more about protecting the reputation of the court.
By rejecting the case on “standing,” which means the court concluded the anti-abortion doctors who filed the case couldn’t show actual harm, the nine justices rebuked the judges on lower courts — including the influentially conservative Fifth Circuit Court of Appeals — that somehow let this flimsy case get this far.
Given how impossible it is to get all nine justices on the U.S. Supreme Court to agree on anything these days, the unanimous decision in FDA v. Alliance for Hippocratic Medicine is clear evidence that the court won’t tolerate lawyers or judges jamming their docket with frivolous lawsuits. And with any luck, our local Utah Supreme Court will see this emphatic decision as a bulwark for them against the threats and bullying tactics of the Utah Legislature and the Utah Attorney General’s Office.
U.S. Supreme Court rejects attempt to limit access to abortion pill
Back in Utah, two important cases challenging the absolute power of the Republican juggernaut remain undecided by the state’s highest court: electoral gerrymandering and the abortion trigger ban. Both cases were argued before the court’s five justices last summer, and the wait for these blockbuster decisions has gone months longer than normal with no timeline for a resolution.
At stake in both cases is whether residents of Utah have the right to even question the Legislature’s decisions on crucial matters related to voting and reproductive health. And even if a majority of residents told the Legislature what we want — as we did with 2018’s ballot initiative to stop partisan gerrymanders — could it be long-lasting since vindictive lawmakers could overrule the people’s choice the next day?
During the oral arguments over the gerrymandering case, Justice Paige Petersen asked, “When do the people have the last word? … You’re saying they can’t have the last word through the initiative process. People structurally don’t ever have the last word.”
I think she was telling the Legislature to just sit on their hands every once in a while.
The waiting game for the abortion decision goes back even longer — almost two years — to June 2022 when a state court blocked the enactment of Utah’s abortion “trigger ban” following the Dobbs decision that overturned Roe v. Wade. As a result, abortion is legal and accessible in Utah up to 18 weeks even as a dozen other states like Idaho, Texas, and Indiana have completed shutdowns on abortion access.
The glacial pace of the judicial system — years since the trigger ban was blocked and months since the Utah Supreme Court took this case under advisement — has frustrated Utah legislators like Rep. Karianne Lisonbee, who lash out when they don’t get their way, ignoring current laws and rules.
First, she tried to sneak a second de-facto abortion ban — the so-called “clinic ban” — by the courts, but they blocked it anyway. Instead of banning abortion, this law (which never went into effect) would have eliminated all the places Utahns could get abortions.
Knowing the blocked clinic ban was doomed, Lisonbee convinced her fellow lawmakers to repeal most of it this year, telling them it would unclog the courts to resolve the trigger ban case sooner. That doesn’t make sense given the trigger ban is in front of the Utah Supreme Court, and the clinic ban was at a district court.
Plus, it is generally believed that passing laws to influence the outcomes of cases currently in front of the state’s high court is a violation of the separation of powers act. But if Republican lawmakers want to repeal an abortion ban (even for the wrong reasons), no one is going to try to stop them.
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