US supreme court allows emergency abortions in Idaho for now

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Conservative bloc

• Alito – Minority

• Barrett – Majority

• Gorsuch – Minority

• Kavanaugh – Majority

• Roberts – Majority

• Thomas – Minority

Liberal bloc

• Jackson – Majority

• Kagan – Majority

• Sotomayor – Majority

The US supreme court has dismissed a case over whether emergency room doctors can perform abortions to save a woman’s health, returning the case to a lower court and potentially delaying a final decision to beyond the November elections.

Idaho had sought to have abortion exempted from the Emergency Medical Treatment and Labor Act (Emtala), which requires hospitals that receive federal dollars to stabilize the health of patients who show up at their emergency rooms with medical emergencies. Idaho was seeking to set a precedent, critics said, that would endanger pregnant people in any state that has abortion restrictions.

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Although many states allow doctors to perform an emergency abortion when a woman’s life or health is at risk, in effect mirroring Emtala, Idaho only allowed doctors to intervene when a woman was on the brink of death, a much higher bar for intervention. The Biden administration sued Idaho to enforce the law.

The supreme court’s punt on the case, which restores a lower-court order to allow doctors to perform abortions in emergencies that threaten a woman’s health, was expected after the supreme court, in a stunning error, “inadvertently” posted a draft decision in the case to the supreme court’s website on Wednesday. The final version of the decision appeared to closely resemble the draft.

Although the justices effectively voted 6-3 to dismiss the case, they did not all agree on the reasoning behind the dismissal.

The liberal justice Elena Kagan wrote an opinion, joined by fellow liberal justice Sonia Sotomayor, arguing that Emtala requires hospitals to provide abortions if a woman needs one to preserve her health. An opinion written by conservative justice Amy Coney Barrett, which was joined by her fellow conservative justices Brett Kavanaugh and John Roberts, indicated that briefing and oral arguments had changed the justices’ understanding of the case enough that taking it at this point in litigation was a “miscalculation”.

Justice Ketanji Brown Jackson partially joined Kagan’s opinion, though she also wrote separately to say that she would not have dismissed the case.

“It is 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,” wrote Jackson, a liberal and the newest member of the supreme court bench.

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she continued. “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. This court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

Jackson’s view was largely shared by abortion rights supporters, who said the court was kicking a critical issue down the road.

“This case was a shameful example of policymakers pushing their political agenda at the expense of their own communities, forcing their pregnant constituents to suffer to the point of death,” Kylee Sunderlin, a services director at the reproductive justice organization If/When/How, said in a statement.

“And today’s decision shows that the supreme court would rather continue playing with pregnant people’s lives than clean up the mess they’ve created.”

Emtala is effectively Americans’ only universal right to healthcare. It came into the crosshairs soon after the supreme court overturned Roe v Wade in June 2022. For nearly 50 years, the Roe ruling had provided a federal right to abortion up to the point that a fetus can survive outside the womb.

Had the court ruled in favor of Idaho, it could have diminished care for pregnant people across abortion-ban states and may also have implicated care for other categories of marginalized people – such as people who have Aids or transgender people.

The Emtala law, signed by the abortion opponent Ronald Reagan, sought to protect pregnant women in active labor in particular. Until its passage, hospitals often transferred or “dumped” women who could not pay when they suffered an emergency at public hospitals, even when in advanced stages of labor.

Emtala had endured a series of attacks, including by some hospital administrators who viewed it as an “unfunded mandate”. Although the federal government required hospitals to treat sick patients, it never provided money to care for indigent patients.

In a fiery dissent, Justice Samuel Alito, one of the most hardline conservatives on the bench, attacked the decision to dismiss the case, arguing that Emtala does not trump Idaho’s ban on abortions to preserve a woman’s health.

“This about-face is baffling,” wrote Alito, whose opinion was joined in whole by Clarence Thomas and in part by Neil Gorsuch. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”

After the supreme court overturned Roe, in an opinion authored by Alito, anti-abortion activists had lunged at chances to send the supermajority-conservative court another abortion-related case.

But so far, their efforts have not panned out.

Earlier this month, the supreme court upheld access to a common abortion pill, mifepristone, by ruling unanimously that the anti-abortion activists in the case did not have the legal right to bring it in the first place.

In both the mifepristone and Emtala cases, the justices veered away from issuing definitive rulings on how to handle the complex consequences of Roe’s demise. These moves leave the door open for future cases on similar issues and, abortion rights supporters say, aim the spotlight away from the supreme court during an election year in which abortion is a key issue.

In a statement, Marjorie Dannenfelser, president of Susan B Anthony Pro-Life America, one of the most powerful anti-abortion organizations in the country, also emphasized the importance of the upcoming election.

“While this litigation continues, it’s a reminder and a wake-up call that the stakes of the coming election are higher than ever for unborn children and their mothers,” she said. Democrats, she added, “must be stopped, and that is why we are working relentlessly to reach 10 million voters – with four millions [sic] visits directly to their homes – across eight key battleground states that will determine who has control in Washington.”