(Note: On NPR this morning they reported that the decision was only up temporarily and then removed. It is speculated the decision was only a draft and not yet a final decision. However it does point to what the final decision will be.)

by Nathaniel Weixel - 06/27/24

Idaho hospitals that receive federal funding must allow emergency abortions to take place even though state laws ban almost all abortions, the U.S. Supreme Court ruled Thursday, at least while the case works its way through lower courts.

The court ruled 6-3 to dismiss the case as improvidently granted, which means doctors in Idaho will be able to perform emergency abortions despite state-level restrictions while the case is being litigated. Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

But justices issued separate concurring and dissenting opinions, suggesting division on the merits of Idaho’s argument.

Justice Ketanji Brown Jackson objected to the court failing to decide the case and read her dissenting opinion from the bench.

“Today’s decision is not a victory for pregnant patients in Idaho. It is a delay,” she wrote. “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. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

The ruling marks a temporary victory for the Biden administration which has struggled to protect access to abortion since the Supreme Court overturned Roe v. Wade two years ago. But dismissing the appeal from Idaho won’t resolve the legal questions and will merely send the case back to the appeals court instead of rushing it through to the highest level.

“Today’s Supreme Court order ensures that women in Idaho can access the emergency medical care they need while this case returns to the lower courts,” President Biden said. “No woman should be denied care, made to wait until she’s near death, or forced to flee her home state just to receive the health care she needs. This should never happen in America. Yet, this is exactly what is happening in states across the country since the Supreme Court overturned Roe v. Wade.”

The Biden campaign was quick to turn the ruling against former President Trump.

“This ruling does not change the fact that women across the country are being turned away from emergency rooms and denied needed reproductive care because of Donald Trump’s abortion bans,” Vice President Kamala Harris said in a statement.

“A second Trump term would make matters even worse. Trump’s team is planning to ban abortion nationwide through executive action, which would impact women in all 50 states,” Harris said.

Bloomberg first reported on the decision, citing an earlier draft of the ruling that the Court accidentally posted online for a brief time on Wednesday.

The case centered on the Emergency Medical Treatment and Labor Act (EMTALA), which requires federally funded hospitals to provide stabilizing care to emergency room patients no matter their ability to pay. Abortion is the standard of care to stabilize many pregnancy-related conditions, and hospitals have long provided the procedure when necessary.

The Biden administration invoked EMTALA in the wake of the Supreme Court decision that overturned Roe v. Wade. The administration said state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the federal statute.

The Department of Justice argued that stabilizing treatment can be an abortion if it’s deemed medically necessary.

But EMTALA doesn’t specifically mention abortion and doesn’t outline which procedures should be provided. Idaho argued that state law supersedes the federal requirement, and states can create a carveout for abortion if the patient’s life is not at risk.

Idaho permits an abortion when “necessary to prevent the death of the pregnant woman,” but not if the patient’s health or reproductive future is at risk from a catastrophic health consequence, like the loss of her uterus. It imposes penalties of up to five years in prison on doctors who perform the procedure.

Lower courts had issued conflicting rulings on whether federal law can apply to emergency abortions. A district court ruled in favor of the administration and blocked the contested part of Idaho’s law. The state appealed, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit lifted the injunction. But the full Ninth Circuit later reinstated it, blocking the state from enforcing the law.

The Supreme Court in January agreed to take the case and allowed the law to take effect before hearing arguments in the matter in April.

In Thursday’s decision, the majority said it was premature for the court to intervene. The justices said the dismissal was warranted because the Justice Department had narrowed the scope of EMTALA while Idaho had changed its laws to expand emergency abortion access.

“The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up,” Justice Amy Coney Barrett wrote in a concurring opinion, along with Chief Justice John Roberts and Justice Brett Kavanaugh.

In a separate dissent, Justice Samuel Alito agreed with Jackson that the court should have decided the case.

Alito, who wrote the Dobbs decision overturning Roe v. Wade, said the issue “is as ripe for decision as it will ever be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”

Alito said it was clear that EMTALA does not require hospitals to perform abortions in violation of Idaho’s ban, not only because the law does not specifically mention abortion, but because it explicitly includes language directing hospitals to protect an “unborn child” from harm.

Health providers say state laws like Idaho’s contain too much uncertainty and don’t protect them if they need to perform an abortion. As a result, stories about pregnant patients in medical distress being turned away from hospitals or being told to wait in a parking lot until their life is in danger are becoming common.

“Everyone is practicing confused and afraid and it’s hurting patients,” said Jessica Kroll, president of the Idaho chapter of the American College of Emergency Physicians.

Kroll said if an EMTALA violation is enforced, it’s at the hospital level rather than the individual physician level. Facilities that violate EMTALA can be fined or stripped of their Medicare and Medicaid funding.

Idaho’s abortion law criminalizes individual physicians, she said.

Abortion rights advocates were quick to note the decision was in no way a victory.

“While access to emergency abortion care has been restored in Idaho for now, the court had the opportunity today to make clear that the federal EMTALA law protects pregnant patients’ access to emergency abortion care in every state. Instead, the court has kicked the can down the road, leaving access to emergency care for pregnant people across the country under threat,” said Planned Parenthood Federation of America President and CEO Alexis McGill Johnson.