In January, a year and half after the Supreme Court’s Republican appointees gave states free reign to restrict abortion — even if that meant forcing women to carry dangerous, ill-fated pregnancies to term — the court doubled-down on that decision, stepping in to ensure Idaho could continue denying abortions to patients whose pregnancies put their health at risk.
The consequences of that choice were immediately apparent: Doctors were forced to airlift pregnant patients from Idaho to Washington to receive treatment that they themselves could have provided, but were legally barred from offering. Between January and April alone, a half dozen patients were medevacked out of the state for emergency abortions. (In the year prior, a single patient had been airlifted out of Idaho for medical attention.)
The Supreme Court didn’t have to intervene; it could have let a lower court ruling, which temporarily halted enforcement of Idaho’s criminal ban when it came to medical emergencies, stand while the case worked its way through the court system.
On Thursday, a majority of justices admitted they shouldn’t have stepped in. As Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, wrote: “Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute.”
Justice Amy Coney Barrett, along with Justices Brett Kavanaugh and John Roberts, said the hearing was “improvidently granted,” and, upon further consideration, they were “now convinced that these cases are no longer appropriate for early resolution.”
The embarrassing reversal — which was accidentally disclosed a day early when it was “inadvertently and briefly uploaded” to the Supreme Court’s website — plainly indicated a growing rift at the court: the three liberal justices, who see this case as a very simple one; three conservative justices — Barrett, Kavanaugh and Roberts — who appear suddenly conflicted about their role putting women’s health in jeopardy; and the ultra-conservative faction — Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — who simply don’t care.
Indeed, Alito even suggested in his dissent that his colleagues can’t handle the “emotional” questions presented by the emergency abortion case.
EMTALA is the Emergency Medical Treatment and Labor Act, an ‘80s-era federal law that says hospitals cannot turn away any patient with an emergency medical condition, and instead must provide them stabilizing treatment. At the heart of this case is a dispute between Idaho, which wants to ban abortions — women’s health be damned — and the Biden administration, who sued arguing the state’s ban violated the federal mandate to provide stabilizing care.
Idaho’s Republican attorney general, Raúl Labrador, argued: “The federal government cannot use EMTALA to override in the emergency room state laws about abortion any more than it can use it to override state law on organ transplants or marijuana use.” (Labrador hired the Alliance Defending Freedom (ADF), a far-right Christian nonprofit, to assist his office with the EMTALA case. ADF, which is designated as an anti-LGBTQ hate group by the Southern Poverty Law Center, helped draft the Mississippi abortion ban at the center of the Supreme Court’s 2022 Dobbs case; justices used Dobbs as a vehicle to overturn Roe v. Wade and eliminate federal protections for abortion rights.)
Today, the court declined to weigh in on that fight and the question at the heart of the case: whether should states be allowed to risk pregnant patients’ health, their reproductive organs and their future fertility, or if they ought to be required to, at the bare minimum, administer treatment in a emergency medical.
Today’s decision — like the one in January — will have an immediate effect, preventing Idaho, as Kagan wrote, “from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman’s health.”
But it’s also a punt. The court is putting the more critical question off for a later date, as Justice Ketanji Brown Jackson said plainly in a separate concurrence. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay. 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 takes a shot at Barrett et al, writing that their rationale that the hearing was “improvidently granted” should be reserved for cases in which circumstances “were not fully apprehended” at the time, rather than “turned into a tool for the court to use to avoid issues that it does not wish to decide.”
The court, she says, is making a grave mistake by not deciding the case on its merits. “We cannot simply wind back the clock to how things were before the court injected itself into this matter… 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.”
On this point at least, the court’s ultra-conservatives agreed. “This about-face is baffling,” Alito wrote, joined by Thomas and, in part, Gorsuch. “Nothing legally relevant has occurred since January 5.” Alito has a theory about what changed, which appears to double as a sexist knock on Barrett: “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,” he writes. (Emphasis ours.)
The trio maintained that EMTALA does not require hospitals to perform abortions in violation of Idaho’s ban, adding that “regardless of whether a hospital chooses to treat or transfer a pregnant woman, it must strive to protect her ‘unborn child’ from harm.”
Brown, for her part, remains alarmed by the mushy center’s unwillingness to choose a side in this fight. “[H]ow long must pregnant patients wait for an answer? … Until these very cases return to us in a few years? Will this court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time? Or maybe we will keep punting on this issue altogether, allowing chaos to reign wherever the lower courts enable states to flagrantly undercut federal law, facilitating the suffering of people in need of urgent medical treatment.”
In Idaho, meanwhile, much of the damage is already done, says state Rep. Lauren Necochea (D). “The lower court order that gave us some protections was in place when 22 percent of our OB-GYNs fled the state, and 55 percent of our maternal and fetal medicine specialists left, and our labor and delivery wards started closing,” Necochea says.
Even as today’s decision protects, for now, Idaho women’s right to emergency medical care, its impact will be limited by the simple fact that “medical providers have already left the state.” Those doctors and nurses who remain, she adds, “will still be operating under a Republican attorney general who took this appeal to the Supreme Court, who wanted to be able to enforce the law against them in medical emergencies. And that is still a scary place to be.”
