Written by Carolyn McDonnell, M.A., AUL Spring Extern, 3L, Univ. of St. Thomas School of Law

On January 25, the Supreme Court issued orders vacating two abortion cases, and remanding the cases with instructions for the lower courts to dismiss the cases as moot. Some pro-abortion advocates have lauded the Supreme Court’s actions as a victory for purported abortion rights, and media outlets have unfortunately fallen into parroting that line. Perhaps the most egregious example we’ve seen is the headline splashed by the Texas Tribune, which declared, “In win for Planned Parenthood, U.S. Supreme Court wipes case law supporting Texas pandemic abortion ban from the books.” That, however, is a misrepresentation of the decisions, which had much more to do with the transient nature of state responses to the threats posed by the COVID-19 pandemic than to any “right” to election abortion.

Slatery, et al. v. Adams & Boyle, P.C., et al. dealt with Tennessee Governor Bill Lee’s Executive Order No. 25 of April 8, 2020. The order required health care providers to postpone elective and non-urgent surgical and invasive procedures, including certain abortion procedures, for three weeks.  The governor issued the order to preserve personal protective equipment and minimize community spread of COVID-19. The Sixth Circuit Court of Appeals upheld an injunction against the executive order, preventing Tennessee from postponing abortion procedures. Ultimately, the executive order expired on April 30th, and the governor did not extend it.

Planned Parenthood Center for Choice, et al. v. Abbott, et al. concerned a similar executive order in Texas. Texas Governor Greg Abbott issued Executive Order GA-09 on March 22, 2020 to preserve personal protective equipment and hospital capacity for COVID-19 patients. Similar to the Tennessee executive order, GA-09 ordered health care providers to postpone all surgeries and procedures, including elective abortions, that were not immediately medically necessary to correct a serious medical condition or preserve the life of a patient. The Fifth Circuit Court of Appeals twice granted a writ of mandamus petition to keep the executive order in place. GA-09 expired on April 21, 2020.

How does mootness play into this? Article III, Section 2, Clause 1 of Constitution, the “Case or Controversy Clause,” limits the Judiciary to deciding a “case” or “controversy”. One critical element of a case or controversy is that the issue is “live”. If an issue is no longer live or current, then it is moot. When a case is moot, the Judiciary no longer has the constitutional power to decide the merits of the case. Consequently, when the Texas and Tennessee executive orders expired, there was no longer a live controversy. In turn, the cases became moot and the Supreme Court was bound to dismiss them.

Here, the Supreme Court was deciding whether to hear the Texas and Tennessee cases after the state executive orders had expired and the cases had become moot. Since the cases were pending on certiorari, the Supreme Court applied what is called a “Munsingwear vacatur”. In layman’s terms, the Supreme Court vacated the judgments, not due to the merits of the cases, but because they were no longer live “cases or controversies.” Notably, the Supreme Court vacated both the Fifth Circuit decision, which had favored pro-life advocates, and the Sixth Circuit decision, which favored pro-abortion advocates.

In the end, this wasn’t a pro-abortion “victory.” There can’t be a winner if the competition, or “live case,” no longer exists. Rather, the Supreme Court neutrally applied a civil procedure doctrine, which, in turn, evenhandedly affected both sides of the abortion debate.