'Storm clouds lie ahead': Supreme Court justices say emergency abortions in Idaho are safe — for now

Left: Supreme Court Justice Ketanji Brown Jackson (Patrick Semansky/AP). Right: Supreme Court Justice Samuel Alito at a discussion series at the National Archives in Washington, Thursday, Oct. 29, 2015. (AP Photo/Cliff Owen).

Just one day after the high court said it “inadvertently” leaked a ruling , the U.S. Supreme Court has formally released its 6-3 decision Thursday declaring that doctors in Idaho must now resume performing abortions in medical emergencies.

Lower courts will still need to sort out state prohibitions, however, since the justices did not decide how Idaho’s ban may run afoul of the federal law known as the Emergency Medical Treatment and Labor Act, or EMTALA — meaning the matter could eventually end up right back before the justices in short order.

As Law&Crime previously reported , EMTALA requires doctors to provide proper care in an emergency. The Biden administration has argued this care includes providing abortions when a pregnant person’s health is in danger, not just when they are on the verge of death.

In a dissent joined by Justices Neal Gorsuch and Clarence Thomas, Justice Samuel Alito contended that “no one who has any respect for statutory language can plausibly say that the government’s interpretation is unambiguously correct” and that while EMTALA obligates care in general, abortions do not always factor in.

This view, Justice Elena Kagan countered in her concurring opinion, “has no basis in the statute.”

EMTALA “unambiguously requires” that Medicare-funded hospitals provide whatever medical care is needed to get a medical emergency under control, she wrote.

“And an abortion, in rare situations, is such a treatment,” Kagan added.

That “kicks in” the moment a person shows up at a hospital with an emergency medical condition. Nowhere in the statute does it outline whether this applies to particular treatments like blood transfusions or mechanical ventilation for example.

“What it instead requires is the treatment that is medically appropriate to stabilize the patient. And when a pregnancy goes terribly wrong, that treatment may be an abortion. Termination of the pregnancy (which is often of a non-viable fetus) may be the only way to prevent a woman’s death or serious injury, including kidney failure or loss of fertility,” Kagan wrote.

Alito does not dispute this “medical fact,” Kagan wrote, but “from that fact, a statutory obligation arises.”

“It does not matter that EMTALA ‘does not mention abortion,'” she wrote, adding that even though the statute references protecting an “unborn child,” this still does not lead her to a different result because the Idaho law “prevents hospitals from doing what EMTALA commands.”

“The Court is right to dissolve its stay of the District Court’s injunction. Doing so will again give Idaho women access to all the needed medical treatments that EMTALA guarantees,” she wrote.

Explaining the snaked path the case took to get to the justices, Kagan acknowledged that after the en banc Court of Appeals for the Ninth Circuit declined to stay the injunction, Idaho filed an emergency application and it was the U.S. Supreme Court that stayed the injunction and granted the State’s petition for certiorari before judgment.

With that stay in effect, Idaho could enforce its ban even when terminating a pregnancy was necessary to prevent grave harm to the woman, Kagan wrote Thursday.

The on-the-ground impact was immediate. To ensure appropriate medical care, 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). I concur in the Court’s decision today to vacate its stay and dismiss the writ of certiorari before judgment as improvidently granted. I do so because Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute.

Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh also concurred, with Barrett writing the concurrence.

Idaho had a burden to show it would be “irreparably injured” if a preliminary injunction was allowed to stay in effect.

But, the concurring justices agreed, it ultimately could not.

“Contrary to Idaho’s concerns at the stay stage, the government’s interpretation of EMTALA does not purport to transform emergency rooms into ‘federal abortion enclaves governed not by state law, but by physician judgement as enforced by the United States’ mandate to perform abortions on demand.’ Nor does it purport to deprive doctors and hospitals of conscience protections,” Barrett wrote.

Justice Ketanji Brown Jackson concurred in part and dissented in part and offered a blistering critique of the Supreme Court’s decision to weigh in on the case at the stay stage and issue the injunction.

Legally speaking, she argued, the court’s stay meant that unless doctors could definitively say whether an abortion was necessary to prevent death, that doctor could no longer provide abortion care that the doctor viewed as “reasonably necessary to keep a patient from losing her uterus, going into organ failure, or avoiding any number of other serious health risks.”

“As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho,” she wrote. “This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law.”

Though she agreed with Kagan’s analysis of the case and concurred with the court’s per curiam decision to lift the stay, she dissented because she does not believe the court should dismiss the case on grounds that it was “improvidently granted.”

Noting that the U.S. is “still hamstrung in its ability to enforce federal law when States pass laws that effectively nullify EMTALA,” Jackson highlighted that the legal conflict Idaho created will and has repeated itself.

Only days before the justices granted the petition in this case, the Fifth Circuit decided a similar one, agreeing to a permanent injunction preventing the U.S. from enforcing EMTALA requirements with respect to stabilizing emergency abortions currently barred in Texas.

Further, Idaho has made a “broad criminalization of abortion,” even in the face of emergency medical conditions that demand “stabilizing abortions,” Jackson wrote.

“That list includes pre-eclampsia, preterm premature rupture of the membranes (PROM), sepsis, and placental abruption, to name just a few examples,” Jackson wrote.

Remarkably, since being sued over its interference with federal law, Idaho has “shifted its position” and “changed its tune,” the justice reflected, “recharacterizing abortions in these scenarios as life-saving care permitted under Idaho law.”

While some justices on the court may see this “convenient rhetorical maneuver as a material change” that eases the conflict between state and federal laws, Jackson said she does not, and argued that it is both “legally and factually implausible to say” Idaho’s current position achieves that.

“In real life,” she wrote, Idaho cannot credibly say that doctors there are always permit to perform abortions in emergency situations.

Sometimes the same medical condition can present itself with different risks in different patients, she noted.

“Such a doctor, observing the different legal thresholds for action under state and federal law — not to mention the severe criminal penalties for miscalculation — would surely be cowed into not providing abortion care that medical standards warrant and federal law requires. Do not take my word for this; it is already happening, ” she wrote. [Emphasis original]

Ahead of oral arguments, the Idaho Coalition for Safe Healthcare Inc. filed a friend of the court brief providing a list of examples where doctors’ lack of certainty stopped them from providing medically necessary abortions. Unlike the Idaho parties that argued before them, even the Idaho Supreme Court, Jackson underlined, has previously emphasized that for doctors to avoid criminal liability they must subjectively believe that abortion is necessary to prevent death.

But there is no “winding back the clock” on how things were before the U.S. Supreme Court “injected itself,” she said.

“Our intervention has already distorted the litigation process … 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 happened,” Jackson wrote.

Despite the “dire need for an answer” from the court, six justices refuse to recognize the rights that EMTALA protects and supersedes, she contends.

“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. And three more decline to disagree with those dissenters on the merits.  The latter group offers only murmurs that ‘petitioners have raised a difficult and consequential argument’ about Congress’s authority under the Spending Clause. So, as of today, the Court has not adopted Idaho’s farfetched theories—but it has not rejected them either.”

In his dissent, Alito argued that some complications in medical emergencies that may require an abortion are rare and not altogether “inevitable” according to obstetric research provided by the Idaho parties.

“Idaho has always permitted abortions that are necessary to preserve the life of a pregnant woman, but it has not allowed abortions for other non-life-threatening medical conditions,” Alito wrote. “This balance reflects Idaho’s judgment about a difficult and important moral question. By requiring Idaho hospitals to strike a different balance, the preliminary injunction thwarts the will of the people of Idaho as expressed in law by their elected representatives.”

While Idaho’s appeal continues to be litigated in the lower courts, it could only grow more complicated with the 2024 presidential election less than six months away. Should former President Donald Trump win the election, he could push for changes to EMTALA that would make it align with state abortion laws entirely.

Currently, the law in Idaho states that anyone who performs an abortion is subject to criminal prosecution and, if convicted, can be sentenced for up to five years in prison and lose their licenses to practice medicine.

The post ‘Storm clouds lie ahead’: Supreme Court justices say emergency abortions in Idaho are safe — for now — amid tense debate over women’s health first appeared on Law & Crime .