“Today’s decision is not a victory for pregnant patients,” liberal Justice Ketanji Brown Jackson warned. “It is delay”
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The Supreme Court will temporarily allow U.S. hospitals to perform emergency abortions — even in states with strict abortion bans — but one of the court’s liberal justices cautions that it’s not exactly the victory for pro-choice activists that it appears.
In a 6-3 ruling released on Thursday, June 27, the Supreme Court punted its final decision on whether states have the right to outlaw emergency abortions, signaling that it will weigh in at a later date, after the case has had a chance to be litigated in lower courts.
In the meantime, hospital emergency rooms operating under abortion bans will be permitted to terminate pregnancies when necessary to stabilize their patients.
On Thursday, liberal Justice Ketanji Brown Jackson warned that with the indecisive ruling, “storm clouds loom ahead.”
“Today’s decision is not a victory for pregnant patients … It is 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.”
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Moyle v. United States centered around a conflict between Idaho’s near-total abortion ban and the Emergency Medical Treatment and Labor Act, which became federal law in 1986.
EMTALA lays out guidelines for how hospitals that receive Medicare funds should handle emergency medical conditions and women in labor. The law demands that qualifying hospital emergency departments provide necessary treatment in order to stabilize patients in crisis; if they do not have the staff or facilities needed to provide proper treatment, they must transfer patients to a hospital that can.
The Biden administration sued Idaho, asserting that EMTALA covers the right to emergency abortion care even if it doesn’t explicitly use those words. Though Idaho makes narrow exceptions for abortion when it’s “necessary to prevent the death of the pregnant woman,” the state law does not allow doctors to consider the option when it’s necessary to tend to a pregnant patient’s health.
2022 DOJ Lawsuit
Even in dire situations that might qualify for the Idaho law’s limited ‘necessary to prevent the death of the pregnant woman’ affirmative defense, some providers could withhold care based on a well-founded fear of criminal prosecution.
The U.S. Constitution makes clear that federal law takes precedence over state law, forming the basis for the Justice Department’s complaint.
The Supreme Court agreed to consider Moyle v. United States unusually early in the litigation process, and ordered for Idaho hospitals to halt emergency abortions while they heard arguments.
On Wednesday, an unfinalized copy of the Moyle decision was briefly posted to the Supreme Court website by accident, revealing where the justices’ take.
Planned Parenthood President Alexis McGill Johnson promptly expressed disappointment in the indecisive ruling, writing in a statement on Wednesday, “As written, the U.S. Supreme Court had the opportunity to be clear that the federal EMTALA law protects the right to abortion in an emergency in every state — regardless of a state’s abortion ban — and they chose not to.”
“Access is still under threat across the country,” she continued, “but for now, this means that patients in Idaho will be able to get the care they need, according to federal law — after seven months of pregnant people suffering in an unnecessary and possibly deadly legal limbo.”
The Supreme Court has dealt with a slate of issues in the two years since it rolled back a half-century of abortion protections afforded by the landmark 1973 case Roe v. Wade. More than a dozen states have near-total abortion bans, and several others have bans with varying gestational limits.
“On the day Roe and [Planned Parenthood v.] Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom,” U.S. Attorney General Merrick Garland said in a 2022 speech when the Justice Department first sued Idaho. “That is what we are doing, and that is what we will continue to do.”
Garland continued: “We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law. And we will closely scrutinize state abortion laws to ensure that they comply with federal law.”
Recently, the Supreme Court handed another temporary victory to pro-choice activists, shutting down a case that challenged the Food and Drug Administration’s relaxed regulations surrounding abortion pills.
In a similar fashion to Moyle, the court did not comment on whether abortion pills should be widely accessible, but rather stated that the specific plaintiffs in the case they heard did not have authority to challenge the FDA.
The court said that if more fitting plaintiffs brought forward a similar case, they would be willing to consider the legality of abortion pills, leaving the door open for them to restrict access in the future.
