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.”
“While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position.”
– Supreme Court Justice Ketanji Brown Jackson
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.
The decision could have had 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. The ruling still leaves the door open for anti-abortion advocates in Idaho and other states to pursue banning medically necessary abortion care in emergency situations.
A handful of states, including Texas and South Dakota, currently have near-total abortion bans that have exceptions allowing for abortions if they’re necessary to save the life of the pregnant person, but not the health of the pregnant person.
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.
“Women’s health, lives, and freedoms remain in peril across the country because of Donald Trump,” a senior adviser to President Joe Biden said in a statement released shortly after the ruling. “Because Trump’s Supreme Court majority overturned Roe v. Wade, women are being turned away from emergency rooms and forced to the brink of death before receiving the care they need. If Trump returns to the White House, he and his allies will ban abortion in all 50 states — without the help of Congress or the courts — putting even more women’s lives at risk.”
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.
