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Supreme Court allows abortion in Idaho emergency rooms, for now

Justices reinstall a lower court's temporary block of the state abortion ban

Demonstrators hold signs outside of the Supreme Court before oral arguments in April over Idaho's anti-abortion law.
Demonstrators hold signs outside of the Supreme Court before oral arguments in April over Idaho's anti-abortion law. (Bill Clark/CQ Roll Call)

The Supreme Court will allow abortions in Idaho in emergency situations, for now, despite the state’s near-total ban on the procedure. But the decision Thursday leaves open questions about one aspect of the legality of abortion across the country amid an election year.

The justices dismissed a dispute between the Biden administration and Idaho state officials as “improvidently granted,” an outcome that reinstates a lower-court ruling that said federal law mandates the availability of abortion in the state’s emergency rooms.

When the Supreme Court agreed to decide the case in January, the justices had paused that ruling and allowed the state to enforce the state law while the Supreme Court decided the case.

Thursday’s decision effectively unwinds the January intervention and sends the case back to the appeals court. The issue will likely return to the Supreme Court as soon as next term, after this year’s election, either in the Idaho case or another concerning a Texas state abortion ban.

The single-sentence majority decision Thursday said nothing about the clash between the federal law, known as the Emergency Medical Treatment and Active Labor Act, or EMTALA, and state laws that restrict abortion. Instead, six justices wrote or signed on to separate concurring decisions supporting the result, and three justices signed on to a dissenting opinion.

That included Justice Amy Coney Barrett, who along with Justice Brett M. Kavanaugh and Chief Justice John G. Roberts Jr., said it was a mistake for the court to leapfrog the lower court and take up the case.

Too much is in flux in the case, Barrett wrote, and they should wait until later to deal with the legal issues.

“Since this suit began in District Court, Idaho law has significantly changed — twice. And since we granted certiorari, the parties’ litigating positions have rendered the scope of the dispute unclear, at best,” Barrett wrote.

Barrett wrote that she and other justices initially relied on Idaho’s assertions that the federal law may mandate abortions for mental health emergencies, or that the law would override federal conscience protections, which turned out not to be the case.

Justice Elena Kagan, joined by Justice Sonia Sotomayor and in part by Justice Ketanji Brown Jackson, wrote that the justices never should have allowed the state to enforce its law. Kagan wrote that a genuine gap exists between the laws, one that has shown itself in the time the Supreme Court allowed Idaho to enforce its law.

Dozens of women have had to be airlifted out of state to receive an abortion when it was necessary to preserve their health but did not immediately threaten their lives, Kagan wrote.

“The statute simply requires the hospital to offer the treatment necessary to prevent the emergency condition from spiraling downward. And on rare occasions that means providing an abortion,” Kagan wrote.

Jackson wrote that the decision was not a victory, and that it preserved a confusing status quo across the country. During the opinion announcements, Jackson read from a portion of her opinion.

“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 wrote.

Justice Samuel A. Alito Jr., joined by Justices Neil M. Gorsuch and Clarence Thomas, argued that the court should have decided the case and ruled against the Biden administration. Criticizing the “baffling” non-decision, Alito wrote that the majority had lost the will to decide the case.

Alito separately argued that federal law included an obligation to protect the life of the unborn child.

“The text of EMTALA shows clearly that it does not require hospitals to perform abortions in violation of Idaho law,” Alito wrote. “To the contrary, EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”

Alito also detailed several medical complications of pregnancy, including the premature rupture of membranes, and said the likelihood of serious complications was too low to justify allowing doctors to claim that federal law required they offer a patient an abortion.

The opinion released Thursday appeared to closely match one that Bloomberg News obtained Wednesday, which a Supreme Court spokesperson said had been inadvertently posted on the court’s website.

Dismissing the case effectively sends it back to the full U.S. Court of Appeals for the 9th Circuit, where state officials had appealed a lower court ruling that EMTALA permits abortions in the state to preserve the health of the mother, rather than just to save her life.

Under Idaho’s law, abortions are prohibited except when “necessary to prevent the death of the pregnant woman” and in cases of rape and incest. Physicians who violate the law could have their medical license temporarily or permanently suspended.

EMTALA is a 1986 law that requires hospitals to provide “necessary stabilizing treatment” to all patients as a condition of receiving Medicare funding.

In 2022, the Biden administration sued Idaho, arguing that EMTALA mandated the availability of abortions when the mother’s health was at risk. A district court and three-judge panel of the 9th Circuit agreed.