On Thursday the Supreme Court majority used a cynical sleight of hand to deliver what seems on the surface, at least, calculated to strike the casual observer as an abortion-rights victory. At best, that’s a cruel deception. At worst, it’s a deflection designed to help former President Donald Trump pull some wool over the few undecided eyes that remain out there as the election nears.
In reality, what all the Supreme Court justices, save for Ketanji Brown Jackson, did was heave a hot potato out past the goalpost of the November election. The court deployed a procedural device designed to undo a decision to hear a case that the court didn’t want to face up to yet. That left a virtually inevitable anti-abortion ruling on the issue for another day when voters have less leverage. Or, let’s just say, for a nonelection year, perhaps with a president named Trump in power again.
The court deployed a procedural device designed to undo a decision to hear a case that the court didn’t want to face up to yet.
It’s not an isolated incident. The court clearly learned its lesson after the fierce election backlash two years ago in Dobbs v. Jackson Women’s Health, when the 6-3 right majority overturned Roe v. Wade four months before the 2022 midterm election.
Thursday’s nondecision decision dismissed Idaho’s appeal of a lower federal court order, holding that in certain situations, federal law “preempts,” or overrides, the state’s near-complete abortion ban. The pre-empted situations are emergencies such as cases in which a pregnant woman needs an abortion to protect her, as Jackson wrote, from “losing her uterus, going into organ failure, or avoiding any number of other serious health risks” short of those a doctor can say would cause imminent death. A federal statute requires hospitals that receive federal funding to provide stabilizing care for patients in any such “emergency medical condition” that poses “serious jeopardy” to their health.
The impact of Thursday’s dismissal was to leave in effect the lower court injunction — an illusory “win” for women who face such crises and for the Biden administration, which had sued to enforce federal law. In fact, as Jackson writes, the court did nothing to undo the “months-long catastrophe” that was “completely unnecessary” and left patients, doctors and the nation in a confusing and damaging fog of uncertainty.
It’s a crisis that will continue. Waiting in the wings are cases from more than two dozen states with laws that defy federal law by banning abortion in similar emergency situations, including one from Texas in which the U.S. government has already sought review. Worse, if Trump is elected president again, his attorney general will abandon the challenge to laws like Idaho’s, leaving women’s health across the country as roadkill.
Noting the near certainty of another petition for certiorari like the one dismissed Thursday, Jackson accused the majority of avoiding a decision that it simply preferred not to face now. That’s judicial diplomacy for “political chicanery before the election.”
Her opinion rightly explains that the court’s “never mind” is a futile effort to “wind back the clock,” plunging pregnant patients and doctors alike into a cruel limbo. It’s “too little, too late for the court to take a mulligan and just tell the lower courts to carry on as if none of this has happened.”
Kicking the emergency abortion issue down the road as a national election looms is convenient for the court’s reactionary majority. The nondecision enables it to cloak the clash between what it seems determined to do eventually and what 80% of Americans believe when a woman’s health demands that abortions be available.
Once burned by overturning Roe before the 2022 midterm elections, however, twice shy about letting extreme anti-abortion ideology offend voters in an election year. And we do mean twice shy. The Idaho case is the second one in two weeks in which the court used a procedural tool to dodge a political bullet. On June 14, in Food & Drug Administration v. Alliance for Hippocratic Medicine, the court noted that the plaintiff association lacked standing, so the justices declined to make any substantive ruling. That “discovery” of something that must’ve been clear from the time the court first agreed to hear the case left intact FDA guidelines for distributing mifepristone, the key ingredient in the primary over-the-counter abortion pill. The two cases are two points that make a beeline for the most convenient pre-election off-ramp. The court might have addressed the standing problem months ago. When the case first came to it in 2023 and the court quickly sent the case back to the 5th Circuit after correcting one failure in that court’s initial decision, the justices could have firmly instructed the lower court to adhere to the Constitution’s standing requirements. Still, the Idaho decision is what’s most stunning here, along with the conservative justices’ willingness to be so crudely obvious about their machinations. We don’t need to get used to it. Voters still have leverage in November. Seven in 10 understand that the court majority is driven by an ideological agenda, not law. Only by electing a president who will appoint justices committed to the rule of law can we send the current majority a message: “We’re on to your attacks on our freedoms, and we’re not going to take it anymore.”
Dennis Aftergut
Dennis Aftergut is a former federal prosecutor, the former chief assistant city attorney in San Francisco and currently counsel to Lawyers Defending American Democracy. He signed LDAD’s December 2021 and States United Democracy Center's October 2021 bar disciplinary complaints against John Eastman.
Laurence H. Tribe
Laurence H. Tribe is University Professor of Constitutional Law Emeritus at Harvard University. The views expressed here are his own. 
