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Slim Supreme Court docket could see headliners on abortion and social media in coming months

The high court’s 2023 term is already set to include big rulings on guns and the administrative state, but the court is likely to add cases to its docket in the coming months that could steal the limelight.

WASHINGTON (CN) — As the clock ticks down on the justices’ summer vacations, Supreme Court watchers have begun placing their bets on which cases on the high court docket are likely to steal the spotlight in the new term. However, this year, the headliners could be lurking in the background. 

So far the court has only agreed to hear around two dozen cases — while generally the justices end up taking somewhere around 80. According to statistical data gathered by SCOTUSblog, the court is slightly behind on filling its docket, but its pace is similar to that of grants last term. 

A blockbuster case the court could consider is a challenge to the abortion drug mifepristone. The justices already got a taste of this case in the spring, but it's possible — and according to some experts, highly likely — the high court will agree to a full review of the case this term. 

The Alliance for Hippocratic Medicine, a group of conservative Christian doctors, brought a challenge to mifepristone’s approval by the Food and Drug Administration, claiming the more than two-decade-old drug was rushed onto the market. The doctors say this has led to complications with the drug, and now they may have to clean up the mess. 

Mifepristone is one of two pills prescribed for medication abortions. It is used to terminate pregnancies up to 10 weeks and is considered to be very safe, with a record rivaling over-the-counter medicines like ibuprofen. 

The Tennessee-based group of doctors incorporated in Amarillo, Texas, shortly after the Supreme Court overturned Roe v. Wade. This put their case on the docket of U.S. District Judge Matthew Kacsmaryk, a Trump appointee known for his conservative jurisprudence. 

Kacsmaryk ruled in favor of the doctors, moving to take mifepristone off the shelves nationwide. After an appeals court declined to completely block the ruling, the Supreme Court stepped in and put the ruling on pause while the litigation proceeded. 

Last month, the Fifth Circuit ruled to restrict mifepristone’s use — rolling back the drug’s approvals to limit its prescription and distribution. The Supreme Court’s stay stops this ruling from taking effect immediately. 

The government has indicated it would appeal the ruling to the justices. There are no guarantees, but the steep consequences of the lower court rulings make it more likely the justices will agree to hear the case. If allowed to go into effect, not only would access to mifepristone be limited, but those looking to challenge other FDA approvals would have a roadmap to do so. 

The Supreme Court could also take up a legal battle between conservative states and social media companies over content moderation laws. 

Lawmakers in Texas and Florida were spurred to enact legislation targeting tech giants after former President Donald Trump was removed from the sites for his role in the Jan. 6 attack on the Capitol. Lawmakers saw Trump’s ban — and the removal of other users' posts and accounts — as unconstitutional censorship. 

The companies argue they are allowed to moderate the content on their own sites. This editorial discretion was at the center of two cases the high court heard last term. Twitter — now X — was accused of assisting the Islamic State in carrying out terrorist attacks in Turkey because the company hosted the group’s content on its site. The justices found X did not aid and abet ISIS and declined to hold Google accountable in a sister suit that sought to reshape the tech giant’s liability shield. 

Those challenges targeted Section 230 of the Communications Decency Act — an almost three-decade-old law that protects social media companies from being held liable for the content users post on their site. Neither Democrats nor Republicans are happy with how social media sites have been governing themselves and the content they host; however, the two sides disagree on where the problem lies, slow-rolling their ability to find common ground to find a solution. 

Florida and Texas see the problem as a liberal bias that leaves conservative voices being censored. Florida’s SB 7072 wants platforms to have to disclose how and when they choose to censor speech in order to curb this issue. Social media companies typically take down speech that results in harm, such as threats or racial slurs. Florida’s law would force companies to keep up posts they disagreed with. If a platform removed the account of a statewide political candidate, it could face fines of $250,000 per day the account was offline. Florida would also force companies to disclose what standards they follow for censoring, de-platforming and shadow-banning users. 

Texas’ approach would label social media companies as public telecommunications facilities or common carriers. That designation would mean control over how platforms regulate their sites, including when they remove users. If users felt they were being censored, they could also sue the company. 

Trade groups representing Facebook, Twitter, YouTube and Etsy claim the laws from these red states violate the First Amendment. NetChoice and the Computer & Communications Industry Association told the Supreme Court that should the laws be enforced, speech on the internet would be upended. 

This case has also already taken one trip to the Supreme Court via emergency docket. Five of the justices agreed to block enforcement of the Texas law. 

Texas’ law survived in lower court challenges, prompting an appeal to the Supreme Court from NetChoice. Florida’s law did not fare so well, leaving the state to ask the justices for intervention. 

In a sign of the justices’ interest in hearing the issue, the court asked for the Biden administration’s input on the laws in January. U.S. Solicitor General Elizabeth Prelogar said the court should take up the issue to decide if the two states' laws comply with the First Amendment. 

The justices are set to review these petitions later this month. 

Follow @KelseyReichmann
Categories / Appeals, Law, Media, National, Politics

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