For the time being, a pregnant woman in Idaho no longer has to be near death before she can get a medically necessary emergency abortion. The Supreme Court on Thursday put back in place an injunction from a lower court that blocks a draconian portion of Idaho’s abortion ban which only allows emergency abortions to prevent a pregnant person’s death.
While it’s a relief that the Supreme Court is blocking the worst part of this law, it’s appalling that such restrictions will continue to exist. Ideally, the court would have ruled that the Idaho law’s extreme restrictions on emergency abortions violate the federal Emergency Medical Treatment and Labor Act — known as EMTALA.
Under the federal law, emergency rooms receiving Medicare funding must treat and stabilize a person with a serious medical condition. A pregnant person with a severe medical condition, for example, that threatens their future fertility or organ function may not be at death’s door but they have a serious condition that might require an emergency abortion.
The Biden administration successfully argued in federal court that the Idaho law violated EMTALA, and a federal judge issued an injunction blocking the emergency conditions in the law. After an appellate court upheld the injunction, the Supreme Court granted Idaho’s request to hear the case and blocked the injunction, letting the harsh restrictions on emergency abortions take effect.
But in an order issued on Thursday, the court said it should not have granted review of what are two cases joined — Moyle vs. U.S. and Idaho vs. U.S. — and kicked them back to the federal courts, putting the injunction back in place.
This is exasperating. This was a prime opportunity not just to save ailing pregnant women from having to be airlifted to another state to have an abortion or to risk death before getting one in Idaho. The justices had an opportunity to protect women in all states with harsh abortion bans that leave it unclear whether doctors may perform the procedure in an emergency.
“This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it,” Justice Ketanji Brown Jackson wrote in a blistering opinion. “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.”
Abortion rights advocates were relieved but similarly frustrated by the lack of a decision.
There’s little doubt that this issue will come before the justices again. In fact, the U.S. government has already asked the court to hear a case in which an appellate court has ruled that the U.S. cannot enforce EMTALA in Texas with regard to emergency abortions.
The order was unsigned but it was accompanied by a number of signed opinions, so any reader can see what the justices all thought of the issues involved in the two cases. For example, Justice Amy Coney Barrett wrote that the Supreme Court should not have reviewed the case and it should return to the lower court — with the injunction against the harsh emergency restrictions in place. “Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA’s requirement is narrower than Idaho fears,” she wrote. Samuel A. Alito, Jr wrote that they should have taken the case and questioned whether the Idaho law was subject to EMTALA’s rules.
If they had decided to issue an opinion, it’s possible they would have ruled for Idaho. So maybe it’s worth being a little glad they didn’t rule this time.
Pregnant women in Idaho may not have to worry for the moment about needing to be at death’s door to get an emergency abortion, but women in other states, such as Texas, aren’t as fortunate. One day the Supreme Court will need to actually weigh in and hopefully make a decision that protects them.
