After a brief misfire earlier this week, the Supreme Court has now officially ruled that it will lift a ban on emergency abortions in the state of Idaho while leaving the larger question of state bans and a federal emergency care law unanswered.
In a 6-3 ruling, the top court wrote that a temporary stay it granted in favor of Idaho’s abortion law back in January was “improvidently granted,” meaning that the court decided it should not have granted an appellate review of a case.
In line with the Biden administration’s interpretation of the Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals in the state will again be required to provide abortions in scenarios where the life of the mother is at risk.
Meanwhile, the broader question of whether the federal law preempts Idaho’s Defense of Life Act, which at the time of its passing made it a crime to perform or assist with an abortion, will be played out in the lower courts “where it belongs,” Justice Elena Kagan wrote for the majority.
Kagan suggested in the opinion that the state is unlikely to succeed in its argument against EMTALA and noted that allowing the abortion ban to take effect had forced Idaho hospitals to frequently airlift endangered pregnant women to different states “to prevent serious harms to their health.”
Justice Ketanji Brown Jackson went further. In her own opinion, the judge agreed with the decision to lift the court’s prior stay but said that the court had heard enough to rule in favor of the federal government.
“As of today, the Court has not adopted Idaho’s farfetched theories—but it has not rejected them either,” she wrote. “Instead the Court puts off the decision. But how long must pregnant patients wait for an answer?”
The dissent from conservative justices Samuel Alito, Clarence Thomas and (in part) Neil Gorsuch also called for a decisive ruling, but in the other direction.
Alito, writing in his dissent, said the top court was right to grant the preliminary injunction pending appeal in January after “recognizing the flaws in the Government’s theory and Idaho’s ‘strong’ likelihood of success.” He described the decision to nix the stay as a “baffling” about-face.
“Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” he wrote. “That is regrettable.”
A concurring opinion from Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, struck the middle ground. They agreed that the temporary stay should be lifted as the case had substantially changed since their decision earlier this year. They were less convinced about the clarity of the cases’ core argument of federal versus state law and that there is now a “difficult and consequential argument” over whether Congress can force Medicare hospitals to violate state law.
Idaho was barred from enforcing its law by U.S. District Judge B. Lynn Winmill, who agreed that the federal emergency care law trumped the state’s restriction. After little action from the U.S. Court of Appeals for the 9th Circuit, the Supreme Court put the ruling on hold pending the state’s appeal.
A version of the opinion was posted inadvertently on the court’s website Wednesday and obtained by Bloomberg before it was quickly pulled down. A public information officer told Bloomberg and other news outlets that the publication was a mistake and that the court’s official opinion was still to come.
The 6-3 ruling lifts that stay and reinstates emergency abortions in the state—a minor victory for abortion advocates and the Biden administration, which has aggressively asserted hospitals’ need to provide lifesaving abortion services.
"The Court’s order today means women in Idaho should once again have access to the emergency care that they need while the case proceeds in the lower courts," Department of Health and Human Services Secretary Xavier Becerra said in a statement following the decision. "However, it does not change the fact that reproductive freedom is under attack. … We stand by our position that EMTALA requires that all patients be offered an appropriate medical screening examination, stabilizing treatment, and transfer, if necessary, irrespective of any conflicting state laws or mandates that apply to specific procedures."
In filed briefs, Idaho and other organizations taking its side have argued that the Biden administration “reinterprets EMTALA as an abortion mandate,” and that, until 2022, there had never been any statute or federal guidance specifying that particular procedures, “much less an abortion,” be provided. They also argued that the law does not conflict with the current EMTALA statute, which provides protections for both a pregnant person and an “unborn child,” and noted EMTALA’s primary focus of addressing instances in which a patient does not have medical insurance.
Bruce Siegel, M.D., president and CEO of America’s Essential Hospitals, said the industry group was “pleased” with the top court’s ruling that “for now, safeguards the health of pregnant patients and respects the sanctity of the physician-patient relationship and medical judgment of providers. We call on states and the courts to reject misguided and dangerous restrictions that would undermine lifesaving emergency services for entire communities.”
MomsRising, an advocacy group in favor of abortion rights, echoed the tenor of Jackson. The group critiqued the court for failing to provide “a clear, unequivocal ruling that no pregnant person can be denied emergency healthcare. … Although women in Idaho have a reprieve, today’s action will put pregnant people in peril by creating potentially life-threatening confusion while we await additional litigation and whatever action extremists in Congress and future administrations may take.”
Thursday’s ruling marks the Supreme Court’s second ruling on abortion of the term. Earlier this month, it sided unanimously with the Food and Drug Administration in a case challenging the availability of mail-order abortion medications and regulatory authority. However, that dismissal on standing again left the broader argument underlying the dispute unanswered.