Yet for months, pregnant women who found themselves in that dire and unwanted situation had to do just that, as the courts tried to intervene in the case and conservative judges ultimately failed to rule on the case, leaving Idaho’s strict law in effect.
And in the meantime, because the justices have not ruled, pregnant women in the other six states with equally cruel abortion laws, with no exceptions for the life of the mother, will face the same ordeal, with threats of outcomes like coma, stroke, amputation, hysterectomy, organ failure, etc. So this is not a victory for pregnant women in distress, but rather a temporary reprieve, and likely only for a portion of them.
Conveniently for Republicans worried about the abortion issue gaining prominence in November, the court’s delay will delay a final decision in the case until after the election — a decision that seems likely to be in Idaho’s favor based on Thursday’s ruling.
If Donald Trump wins in November and the new administration abandons the Biden administration’s interpretation of emergency medical law, then, conveniently for some judges, this uncomfortable issue may simply disappear without them having to rule on it.
“Frivolously granted and therefore denied” is just that, the technical term for the court’s final disposition of the case, which was officially announced Thursday after a posting error the day before. Given the conservative court’s voting record, this outcome may have been for the best.
But what was arguably granted with impunity was the court’s order imposing this additional harm on pregnant women because of the threat of irreparable harm — an order not against pregnant women, but against the state of Idaho and, presumably, that state’s sovereign interest in ensuring that the fertility of women who desire children is impaired.
Let me explain. Following a 2022 ruling that eliminated constitutional protections for abortion rights, the Biden administration sued Idaho under the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide “stabilization” care to patients who arrive at emergency rooms. If they fail to do so, they risk losing Medicare funding.
The district court tentatively agreed with the Biden administration, saying that in limited circumstances where there is a serious threat to the mother’s health, EMTALA supersedes state law. An all-Trump-appointed panel of the U.S. Court of Appeals for the 9th Circuit disagreed, and the full appeals court upheld the district court’s argument. So Idaho appealed to the Supreme Court before the litigation had even begun in earnest.
And not only did the Supreme Court take the unusual step of bypassing the appeals court and granting certiorari before the decision (recall, this is the same step that special counsel Jack Smith sought but was denied in President Trump’s immunity lawsuit), it also allowed the Idaho law to remain in effect while it considered the case.
In a Thursday opinion, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, said the motion to expedite the case, and the accompanying stay, should never have been granted in the first place. “EMTALA requires hospitals to provide abortions that Idaho law prohibits,” Justice Kagan wrote. “As such, Idaho law prevails.”
The reasoning of the six conservative justices was far more problematic. Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch dissented in full from the decision to dismiss the case.
“Far from requiring hospitals to provide abortions, EMTALA’s provisions explicitly require Medicare-funded hospitals to protect the health of pregnant women and mothers,” Alito wrote. and Her “unborn child.”
This is pure sophistry. Congress amended the law to include this provision after it became clear that some hospitals were trying to turn away pregnant women in situations where the fetus, not the mother’s health, was at risk. Its purpose is to give mothers and babies additional protections, not, as Justice Alito argued, to require hospitals to trade off one right for another.
More troubling still are the views held by three justices considered moderate – Justice Amy Coney Barrett, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh – whose positions will determine the ultimate outcome.
Barrett said defenders of Idaho’s law are “raising a difficult and significant debate” about “whether Congress can require recipients of federal funds to violate state criminal law.”
Hard? Jackson aptly called it a “trick.” Congress has the unquestioned power to attach conditions to people receiving funds it appropriates, and it routinely does so with Medicare. When Congress does so, it supersedes state law and is supreme law under the Constitution. Case closed.
Attorney General Elizabeth B. Preloger said during oral argument: [Idaho] “What the state wants is for its hospitals to be able to accept Medicare funds and not face the restrictions that come with that money as a critical part of the deal. And there is no precedent that would support such an outcome.”
Perhaps the most passionate passage in the case came from Jackson, who wrote a dissenting opinion for the court. She argued that the court has a duty to decide the case, not to fleece it. Even if an injunction is issued again preventing Idaho from enforcing its law in certain circumstances, she argued, doctors who face the risk of criminal prosecution would be right to be cautious about performing abortions.
Yes, but immediate uncertainty may be better than an immediate loss. That is the unfortunate situation in which this court has placed pregnant women and the doctors entrusted with their care.
