Supreme Court rejects attack on emergency abortion care in Idaho

The Supreme Court rejected an attack on emergency abortion care in Idaho in a ruling Thursday morning.

Although the decision is a relief for many abortion advocates, many – including some Supreme Court justices – caution against calling it a victory.

The ruling was “per curiam,” meaning it was unsigned. Six justices – Elena Kagan, Sonia Sotomayor, Ketanji Brown Jackson, Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts – wrote concurring opinions. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wrote dissenting opinions. The court reinstated a lower court ruling that allowed Idaho hospital emergency rooms to perform emergency abortions to save the life and health of a pregnant person.

The decision is consistent with the draft opinion that was accidentally posted on the court’s website on Wednesday morning, causing a stir and confusion among the media and lawyers on both sides. The opinion was removed from the website shortly after it was posted.

Judge Ketanji Brown Jackson warned in her ruling that “storm clouds are gathering.”

“Despite the clarity of the legal question and the urgent need for this Court to respond, six justices today refuse to recognize the rights EMTALA protects,” Jackson wrote. “The majority chooses instead to dismiss these cases. But storm clouds are gathering. Three justices indicate, at least in this context, that states have free rein to overturn federal law.”

At the heart of this case was the question of whether that language ran afoul of a federal law called the Emergency Medical Treatment and Labor Act. EMTALA requires hospitals that participate in Medicare—the majority of hospitals in the country—to perform abortions when they are necessary to stabilize a pregnant patient during a medical emergency.

This decision is “not a victory for pregnant patients in Idaho,” but “a delay,” Jackson wrote.

“While this Court dithers and the country waits, pregnant patients with medical emergencies remain in a precarious position because their doctors are left in the dark about what the law requires,” Jackson wrote. “This Court had a chance to bring clarity and certainty to this tragic situation, and we squandered it. And as long as we refuse to explain what the law requires, pregnant patients in Idaho, Texas and elsewhere will pay the price.”

Alito agreed with Jackson in his dissent, saying the decision to dismiss the case without resolving its merits was “puzzling.” However, he believes the Supreme Court should have ruled in Idaho’s favor and used the anti-abortion terminology “unborn child” throughout his dissent.

“The Court has simply lost the will to decide the simple but emotional and highly politicized question that the case raises,” Alito wrote. “This is unfortunate.”

The ruling is similar to the court’s recent ruling on the abortion pill mifepristone. While it does not restrict access to emergency abortion care, it does not go so far as to protect that care. It simply delays the case by sending it back to lower courts.

Mark Joseph Stern, senior court reporter at Slate, wrote in his analysis of the ruling leaked yesterday that the decision reads like a politically motivated jab.

“This result reeks of a cynical compromise forced by the more tactically minded conservative justices to delay this volatile issue beyond the fall election,” he wrote.

“The Republican Party’s position — that states can push patients to the brink of death before allowing them to terminate a failed pregnancy — is politically toxic. A Supreme Court decision allowing states to impose such draconian policies could hurt Republicans, and Donald Trump in particular, in November,” Joseph Stern added. “The three less extreme conservative justices may have thus found a way to dismiss the case. But they also gave us good reason to believe that when the case comes back up next year, they will side with red states seeking to enforce their abortion bans against patients in extreme medical distress.”

The decision could have had immediate and serious consequences for abortion access had the court ruled in favor of Idaho, one of nearly 20 states that have banned abortion since the Supreme Court overturned Roe v. Wade in 2022. But the ruling still leaves abortion opponents in Idaho and other states where abortion is almost completely banned with few exceptions, such as Texas and South Dakota, with the option of seeking a ban on medically necessary abortions in emergency situations.

There were Dozens of reports of pregnant women across the country – in Texas, Florida, Oklahoma and elsewhere — who were denied emergency abortions because they were not close enough to death. Since Idaho passed a near-total abortion ban, pregnant women have been flown out of the state by helicopter to receive life-saving treatment.

The oral argument in April drew hundreds of protesters on both sides of the abortion debate. Justice Amy Coney Barrett was the only conservative justice to express concerns about how Idaho’s abortion ban might affect pregnant women. The other conservative justices focused on other aspects of the case, such as the financial strength of the federal government.

A senior adviser to President Joe Biden said in a statement released shortly after the ruling that “women’s health, lives and freedom continue to be at risk” because of former president and current Republican presidential candidate Donald Trump.

Vice President Kamala Harris added in a later statement that there would be further restrictions on reproductive health if Trump wins the election in the fall.

“A second Trump term would make the situation even worse. Trump’s team plans to ban abortion nationwide by decree, which would affect women in all 50 states,” the vice president said.

“President Biden and I fundamentally believe that every American has the right to make decisions about their own reproductive health care without the government telling them what to do. Ultimately, one thing is certain: The only way to stop Trump’s relentless attacks on Americans’ fundamental freedoms is at the ballot box in November.”

Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, called the ruling “unconscionable” in a statement Thursday morning.

“As a direct result of the U.S. Supreme Court’s actions, Idaho residents were denied access to emergency abortion care for nearly six months,” she wrote. “Although access to emergency abortion care has been restored in Idaho for now, the Court had the opportunity today to clarify that the federal EMTALA law protects access to emergency abortion care for pregnant patients in all states. Instead, the Court has put the issue on the back burner, jeopardizing access to emergency care for pregnant people across the country.”

The case, a consolidation of Idaho v. United States and Moyle v. United States, revolved around the exceptions to Idaho’s near-total abortion ban, which first took effect in August 2022. Specifically, the case focused on one of the three narrowly defined exceptions to the Idaho ban: when an abortion is “necessary to prevent the death of the pregnant woman.”

Under federal law, doctors are legally required to perform an abortion in this case. But Idaho’s law is so narrow that it only allows doctors to perform an abortion when death is imminent. These additional delays can cause complications that lead to long-term health problems, such as uterine bleeding requiring a hysterectomy or kidney failure requiring lifelong dialysis. And if doctors have to wait until patients are already dying to perform an abortion, they may not be able to save those patients’ lives in the first place.

The Justice Department sued Idaho when the abortion ban first took effect in 2022 because the state law directly conflicted with EMTALA, the department argued. Under the Constitution’s Supremacy Clause, federal law by default takes precedence over state law. But the Supreme Court’s Dobbs decision, which overturned Roe v. Wade, left abortion regulation to the states.