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Opinion | Abortion laws far from settled


in most of his Options In overturning Roe v. Wade, Justice Samuel Alito resolved the heated abortion debate by insisting that the high court had finally returned “the power to regulate abortion” to “the people and their elected representatives.”

Despite these assurances, less than two years after Dobbs v. Jackson Women’s Health Organization, the abortion issue returned to the Supreme Court. Next month, justices will hear arguments in two high-stakes cases that could affect access to drugs for future abortions and life-saving care for pregnancy emergencies.These cases clearly demonstrate that Dobbs It didn’t solve America’s abortion problem—instead, it created a new set of problems. One of the issues involves the interaction of existing legal rules with the concept of fetal personhood – a view held by many anti-abortion campaigners that a fetus is a human being entitled to the same rights and protections as any other human being.

this first caseArguments are scheduled for Tuesday in FDA v. Hippocratic Medical Alliance, a challenge to the U.S. Food and Drug Administration’s agreement to approve and regulate mifepristone, one of two drugs used for medical abortions. An anti-abortion doctors group believes the FDA acted illegally when it relaxed existing restrictions on the use and distribution of mifepristone in 2016 and 2021. In 2016, the agency implemented changes that allowed the use of mifepristone up to 10 weeks into pregnancy (instead of seven weeks); reduced the number of in-person dispensing required from three to one, and allowed for in-person dispensing by individuals such as licensed practical nurses. Prescribe. In 2021, the requirement for in-person prescription dispensing was removed, clearing the way for prescriptions to be dispensed by mail. Physician groups urged the court to strike down the rules and reinstate previously stricter rules surrounding the drug — a ruling that could affect access to the drug in every state, regardless of the state’s abortion politics.

The second case, scheduled for argument on April 24, involves the Emergency Medical Treatment and Labor Act, known to doctors and health policymakers as emtala), requires federally funded hospitals to stabilize patients, including pregnant patients, or transfer them to a hospital capable of providing such care. At issue is the law’s interaction with state laws that severely restrict abortion, such as Idaho’s law banning abortion except in cases of rape or incest and when “abortion is necessary to prevent the death of the pregnant woman.”

Although Idaho law limits the provision of abortion care to situations where death is imminent, the federal government believes that, under EMTALA and the fundamental principles of federal supremacy, pregnant patients experiencing emergencies at federally funded hospitals in Idaho have The right to abortion care even if they are not in imminent danger of death.

The cases may be framed in the technical terms of administrative law and federal precedence doctrine, but both involve extremely high risks to the life and health of pregnant women and provide the court with an opportunity to shape the abortion access landscape post-Roe. era.

The two cases may also give courts an opportunity to lay a new foundation for fetal personhood, with arguments throughout both cases showing that a fetus is a person.

If this is the case, the legal rules that normally operate in these situations may not apply. If these questions have to take into account the rights and entitlements of the fetus, then the whole calculus is upended.

In this new situation, the question is not just whether EMTALA’s protections for pregnant patients precede Idaho’s abortion ban, but which set of interests (patients) should be prioritized in the competition between state and federal law interests or the interests of the fetus). The analysis of the FDA’s regulatory agreement would be entirely different if one of the arguments was that the drug to be regulated might be used to end a life.

Neither case gave the judge a clear opportunity to endorse the concept of fetal personhood, but the assertion lurked beneath the surface.Idaho abortion ban dubbed ‘Protect Life Act’ and in the first bill Introduced in 2024, the Idaho Legislature proposed replacing the word “fetus” with “unborn child” in existing Idaho law. In court briefs, Idaho continued to advocate fetal personhood, insisting that EMTALA protects the unborn, not the unborn. Pregnant women who require abortion during a health emergency.

According to the state, there is no obligation in EMTALA to provide stable abortion care to pregnant women. Instead, the law “actually requires stable treatment of a pregnant woman’s unborn child.” In the mifepristone case, advocates referred to the fetus as an “unborn fetus.”Children,” while a Texas district judge invalidated the FDA’s approval of the drug describe It “starves unborn humans until death.”

Fetal personality language is on the rise nationwide. Decidethe Alabama Supreme Court allowed a wrongful death lawsuit over the destruction of frozen embryos used for in vitro fertilization (IVF), which the court characterized as “extrauterine children.”

The Florida Supreme Court recently held oral arguments on a proposed ballot initiative to enshrine the right to reproductive freedom in the state’s constitution, which was less discussed but no less concerning. While considering the proposed motion, the state Supreme Court chief justice repeatedly criticized Nathan. Forrest, the senior deputy attorney general representing the state, asked whether the state recognized a fetus as a person under the Florida Constitution. The point is simple: If a fetus is a person, then the proposed ballot initiative and its protections for reproductive rights would change the fetus’ rights under the law, raising constitutional questions.

As these cases illustrate, the pursuit of fetal personhood goes beyond recharacterizing abortion as homicide. If the fetus is a human being, any act involving reproduction may involve the rights of the fetus.Fetal personhood is therefore likely to raise questions about abortion, contraception and various forms of assisted reproductive technology, including in vitro fertilization

In response to the changing landscape of reproductive rights, President Biden promise “Reinstating Roe v. Wade Roe and its successor, Planned Parenthood v. Casey, were far from perfect; they gave states significant leeway to impose strict restrictions on abortion, allowing many women and families with limited financial means to have meaningful access to Abortion becomes a blank check But both decisions reflect the Constitution’s vision to, at least in theory, protect the freedom to make certain intimate choices — including choices around whether, when and how to become parents.

According to Roe and Casey’s logic, there is no problem with the enforceability of EMTALA or the FDA’s authority to regulate mifepristone and IVF. But in the post-Dobbs era, all bets are off. We no longer live in a world where common conceptions of constitutional freedoms make bans on in vitro fertilization or some forms of birth control beyond imagination.

Melissa Murray, professor of law at New York University and host of the Supreme Court Podcast”Critical review,”yes”Trump’s indictment: Historic charging documents with commentary. “

Kate Shaw is an Opinion contributor, professor of law at the University of Pennsylvania Carey School of Law, and host of “Strong Examination.” She served as a law clerk to Judges John Paul Stevens and Richard Posner.

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