OPINION ANALYSIS

Supreme Court allows emergency abortions, for now, in Idaho

The Supreme Court on Thursday cleared the way for emergency abortions to go forward, at least for now, in Idaho. Less than 24 hours after Bloomberg News reported on the brief and accidental release of an opinion on the Supreme Court’s website, the justices officially announced that they had dismissed a pair of cases, Moyle v. United States and Idaho v. United States, as “improvidently” – that is, mistakenly – granted, without ruling on the merits of the dispute.

Thursday’s unsigned order from the justices leaves in place an order by a federal judge in Idaho that temporarily blocks the state from enforcing its abortion ban, which carves out exceptions only to save the life of the mother and in cases of rape or incest, to the extent that it conflicts with a federal law, the Emergency Medical Treatment and Labor Act. That 1986 law requires emergency rooms in hospitals that receive Medicare to provide “necessary stabilizing treatment” to patients who arrive with an “emergency medical condition.”

The court’s order did not indicate why the justices had dismissed the case, but a series of concurring and dissenting opinions provided more insight into the justices’ thinking. Five justices – Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett – agreed with the decision to dismiss the case, which will now return to the lower courts. Four justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Ketanji Brown Jackson – would have ruled on the merits of the dispute, although Jackson took a different view of those merits than the other three.

Thursday’s ruling is the second time in less than a month that the court has declined to weigh in on abortion, after overturning the constitutional right to abortion just two years ago. Two weeks ago, the justices ruled – by a vote of 8-1 – that a group of doctors and medical groups opposed to abortion lacked a legal right, known as standing, to challenge the Food and Drug Administration’s expansion of access to mifepristone, which is one of two drugs used in medication abortions. Like the mifepristone dispute, the dispute over the conflict between state law and EMTALA could return to the Supreme Court, but neither is likely to do so before the November 2024 elections. And if former President Donald Trump were to win reelection in November, his administration might limit access to mifepristone and opt to reverse the Biden administration’s stand on EMTALA.

The case arose nearly two years ago, in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning the constitutional right to an abortion and returning the question of abortion access largely to the states. The Biden administration went to court soon after that ruling, where it argued that EMTALA supersedes Idaho’s general ban on abortion except (as relevant here) to save the life of the mother.

A federal judge in Idaho agreed with the Biden administration and temporarily barred Idaho from enforcing its ban to the extent that it conflicts with EMTALA. After the full U.S. Court of Appeals for the 9th Circuit declined to disturb that order, the state came to the Supreme Court, which agreed in January to put the lower court’s order on hold – allowing Idaho to enforce its law in full – and hear oral argument.

Kagan filed an opinion on Thursday (joined in full by Sotomayor and in part by Jackson) in which she endorsed the decision to dismiss the case and vacate the Supreme Court’s order that allowed Idaho to enforce its law. There was no reason, she stressed, for the Supreme Court to intervene in the dispute at this early stage.

But Kagan saw a clear conflict between EMTALA and Idaho’s abortion ban. “What falls in the gap between them,” she explained, “are cases in which continuing the pregnancy does not put a woman’s life in danger, but still places her at risk of grave health consequences, including loss of fertility.” And she noted the “on-the-ground impact” of allowing Idaho to enforce its abortion ban while litigation continued, observing that “the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).”

Justice Amy Coney Barrett contended that the court correctly dismissed the case because the case was not the same one that it had agreed earlier this year to take up. Both Idaho law and the Biden administration’s arguments had shifted, she suggested: Idaho now says that the exception to its abortion ban to save the life of the mother is “broader than the United States fears,” while the Biden administration has narrowed its interpretation of the scope of EMTALA. In particular, she noted, the Biden administration now maintains that abortions are never required as stabilizing care for mental health conditions and has clarified that doctors and hospitals who object to abortion are protected by federal law from having to perform them. Therefore, she concluded, “even with the preliminary injunction in place, Idaho’s ability to enforce its law remains almost entirely intact,” and the Supreme Court does not need to weigh in now.

This is especially true, Barrett added, when Idaho has made a “difficult and consequential” argument that the lower courts did not consider: the idea that the Constitution bars Congress from using its “power of the purse” to require hospitals that take Medicare funding “to violate state criminal law.”

Jackson agreed with the decision to allow emergency abortions, but she dissented from the decision to dismiss the case. In her view, the court should have reached the merits of the dispute and ruled in the government’s favor. Echoing Kagan’s concurring opinion, she argued that “EMTALA plainly requires doctors to provide medically necessary stabilizing abortions in limiting situations.” And since the court agreed to take up the case in early January, she wrote, the need for the court to say that clearly “has only increased,” as other states have enacted laws that will create similar conflicts. Indeed, she noted the Biden administration has already asked the justices to review a decision by the U.S. Court of Appeals for the 5th Circuit that bars the federal government from enforcing EMTALA in Texas.

More broadly, Jackson emphasized, “[t]oday’s decision is not a victory for pregnant patients in Idaho. It is delay.” “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 countered in his dissent that the government’s theory that EMTALA supersedes state law “is plainly unsound.” “Far from requiring hospitals to perform abortions,” he wrote, “EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her unborn child.”

Alito deemed the court’s decision to dismiss the case a “baffling” “about-face.” “Nothing legally relevant has occurred since” the court granted review in early January, he posited. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized that the case presents.”

This article was originally published at Howe on the Court.