Our Supreme Court needlessly vacated an injunction against the Idaho legislature’s strict abortion ban, which in effect halted emergency abortions in that state to protect the life, health or safety of the mother. The “vacating” –– that is, a stay of the lower court’s injunction on the application of the Idaho law –– lasted almost six months. In a decision announced June 27, the Court’s majority said that it had “improvidently” granted certiorari (the Latin name for that old “writ” that called up the case for review by the Court). But even after hearing arguments and receiving numerous briefs from friends of the court, they did not reach the merits of the case, which involved whether a federal statute, the Emergency Medical Treatment and Labor Act (EMTALA) would pre-empt the Idaho statute, which had left doctors in Idaho in a quandary when women might need an abortion to preserve their health.
As the Center for American Progress wrote after the decision,
“This stay completely changed the lives of pregnant patients and medical providers in Idaho because it allowed Idaho’s near-total abortion ban to go into effect for the first time. Previously, the case was guided by a preliminary injunction —or temporary legal pause—issued by the U.S. District Court of Idaho (Southern Division) on August 24, 2022, that prevented specific sections of Idaho’s abortion ban criminalizing medical providers from becoming law. The injunction provided a degree of legal certainty for EMTALA-certified hospitals, medical providers, and pregnant patients that emergency abortion care was still permissible under EMTALA.”
“However, the Supreme Court’s January 2024 stay suspended EMTALA’s protections and upended legal and medical norms in Idaho. After the stay went into effect, St. Luke’s hospital in Boise airlifted six patients experiencing pregnancy complications from January 2024 to April 2024. By comparison, for the entirety of 2023—when EMTALA’s protections were in effect in Idaho and the provision of necessary care was still permitted—only one pregnant patient was airlifted.”
“It is beyond reproach that, if not for the Supreme Court’s arbitrary legal stay upending the legal and medical norms in Idaho, these patients would not have been flown out of their home state for federally guaranteed medical care.”
Not only was the stay decision arbitrary, but the Court failed to resolve the question they had determined to decide: whether pregnant women in Idaho have the right to an abortion when it is the only treatment that will stabilize a medical emergency. This ‘non-decision’ totally avoids deciding how to resolve conflicts between state and federal law over abortion.
“Today’s decision is not a victory for pregnant patients in Idaho,” Jackson wrote in the released document, concurring with the decision to reallow emergency abortions in Idaho but dissenting with the decision not to decide the merits of the case. “While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position.”
The Idaho law, passed Dobbs v. Jackson Women’s Health Organization (2022) overturned Roe v. Wade, barred abortions unless one was needed to save the life of the mother. The Biden administration sued, arguing the state’s law conflicted with the Emergency Medical Treatment and Labor Act (EMTALA). That federal law requires hospitals to provide stabilizing treatment to anyone who needs it, or risk losing Medicare funding. In some cases, an abortion is the only treatment that will stabilize a pregnant patient facing dire health consequences—if not yet death.
There are times when a fetus cannot survive and the end of the pregnancy is imminent. For example, the mother’s water breaks before the fetus can survive outside the womb, and an abortion is required to prevent serious, even life-threatening, consequences for the mother. Yet hospitals in states with strict abortion bans have begun to turn these women away until they become very sick, leading to near-death experiences that can have serious consequences for the mothers’ health and future fertility.
Losing access to emergency abortions can prove fatal in some cases. As the American College of Obstetricians and Gynecologists warned in its friend of the court brief, “four in five pregnancy-related deaths nationwide are preventable. Deterring and delaying care to Idaho patients facing obstetrical emergencies will inevitably worsen those outcomes.”
A friend of the court brief filed by Amanda Zurkowski and sixteen other women illustrated the experiences women who were “denied or delayed in receiving lifesaving or health-preserving abortion care.”
When the Court overturned Roe v. Wade in the Dobbs decision, the majority seemed to think it had rid itself of thorny questions on the rights of women and the rights of unborn children. “This Court will no longer decide the fundamental question of whether abortion must be allowed throughout the United States through 6 weeks, or 12 weeks, or 15 weeks, or 24 weeks, or some other line,” declared Justice Brett Kavanaugh in a concurring opinion in Dobbs. “Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”
Justice Alito, writing for the majority, was just as optimistic that the Court had left thorny issues of abortion behind:
“The authority to regulate abortion must be returned to the people and their elected representatives,” Justice Samuel A. Alito Jr. wrote for the majority. You could almost hear Sam Alito sniffing with righteous indignation: it was “egregiously wrong” for the federal government to interfere with state law and the elected representatives of “the people.” But Alito looks past the influence of gerrymandering and campaign money from donors outside of Idaho; so “the will of the people” has already been manipulated by GOP legislators there, and much of their agenda is driven by outside money rather than popular policy sentiment of “the people.” Idaho, it seems, is awash in the corrupting sludge of political money.
Other states are awash, as well. So why does the Dobbs majority suggest that the federal government has no possible role in abortion, and say we should “let the people’s will be done?” They clearly underestimated the kinds of problems that a patchwork of state abortion laws would create all kinds of problems. In keeping with the invitation from the Court to deal with abortion as they saw fit, Idaho’s elected representatives passed a strict ban on abortion that clearly seems to conflict with federal law;
What a shame. But it’s all very legal; they are, after all, Justices of the Highest Court in the Land!