Supreme Court Allows Emergency Abortion Care In Idaho For Now

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

While the decision is a sigh of relief for many abortion rights advocates, many people ― including some Supreme Court justices ― are cautioning against calling it a win.

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 dissents. The court reinstated a lower court ruling that allowed hospital emergency rooms in Idaho to perform emergency abortions to save the life and health of a pregnant person.

The decision is in line with the draft opinion that was accidentally published to the court’s website on Wednesday morning, setting off a flurry of activity and confusion for media and advocates on both sides of the issue. The opinion was removed from the site shortly after it was published.

Justice Ketanji Brown Jackson warned in the ruling that “storm clouds loom ahead.”

“Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects,” Jackson wrote. “The majority opts, instead, to dismiss these cases. But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law.”

The core of this case looked at whether that language conflicted with 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 offer abortion care if it’s necessary to stabilize the health of a pregnant patient while they’re experiencing a medical emergency.

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

“While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept 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 have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.”

Alito agreed with Jackson in his dissent, suggesting that the decision to dismiss this case without resolving it on its merits is “baffling.” But he believes that the high court should have ruled in favor of Idaho, using the anti-abortion terminology “unborn child” throughout his dissent.

“The Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” Alito wrote. “That is regrettable.”

The opinion is similar to the court’s recent ruling on the abortion pill mifepristone. While it does not roll back access to emergency abortion care, it does not go as far as to protect that care. It simply prolongs the arguments in the case by kicking it back to lower courts.

Slate’s senior courts writer Mark Joseph Stern wrote in his breakdown of yesterday’s leaked ruling that this decision reads as a politically motivated punt.

“This outcome reeks of a cynical compromise, secured by the more tactical conservative justices, to push this explosive issue past this fall’s election,” he wrote.

“The Republican Party’s position ― that states may force patients to the brink of death before allowing them to terminate a failing pregnancy ― is politically toxic. A Supreme Court decision allowing states to impose such a draconian policy could hurt Republicans, and Donald Trump specifically, in November,” Joseph Stern added. “The three less-extreme conservative justices may have therefore figured out a way to punt the case. Yet they also gave us good reason to believe that when it comes back around next year, they will side with the red states that wish to enforce their abortion bans against patients in extreme medical distress.”

The decision could have had immediate and severe consequences for abortion access had the court ruled in favor of Idaho, one of nearly 20 states that has banned abortion since the Supreme Court repealed Roe v. Wade in 2022. But the ruling still leaves the door open for anti-abortion advocates in Idaho and other states that have near-total abortion bans with narrow exceptions, like Texas and South Dakota, to pursue banning medically necessary abortion care in emergency situations.

There have been dozens of reports of pregnant women across the country — in Texas, Florida, Oklahoma and elsewhere — who were denied emergency abortion care because they weren’t close enough to death. Since Idaho passed its near-total abortion ban, pregnant women have been helicoptered out of the state to get lifesaving care.

The oral arguments, heard in April, attracted hundreds of protesters on either side of the abortion debate. Justice Amy Coney Barrett was the only conservative justice who expressed concern about how Idaho’s abortion ban may impact pregnant people. The rest of the conservative judges were focused on other aspects of the case, such as the spending power 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 freedoms remain in peril” because of former president and current GOP presidential nominee Donald Trump.

Vice President Kamala Harris added in a later statement that more restrictions on reproductive health are coming if Trump wins the election this fall.

“A second Trump term would make matters even worse. Trump’s team is planning to ban abortion nationwide through executive action, which would impact 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 and not have the government tell 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 this November.”

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

“For nearly six months, as a direct result of the U.S. Supreme Court’s actions, Idahoans have been denied access to emergency abortion care,” she wrote. “While access to emergency abortion care has been restored in Idaho for now, the court had the opportunity today to make clear that the federal EMTALA law protects pregnant patients’ access to emergency abortion care in every state. Instead, the court has kicked the can down the road, leaving access to emergency care for pregnant people across the country under threat.”

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

Federal law states that physicians are legally required to offer abortion in that scenario, but Idaho’s law is so narrow that it only allows physicians to perform an abortion when death is imminent. Those added delays could cause complications that leave them with long-term health conditions, such as a uterine hemorrhage that requires a hysterectomy, or kidney failure that requires lifelong dialysis. And if doctors have to wait until patients are already dying to provide abortion care, they may not be able to save those patients’ lives in the first place.

The Department of Justice sued Idaho when the abortion ban first went into effect in 2022 because, the department argued, the state law is in direct conflict with EMTALA. Under the Supremacy Clause of the Constitution, federal law by default overrides state law. But the Supreme Court’s Dobbs decision, which repealed Roe v. Wade, left regulation of abortion to the states.

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