Emergency abortion access has become a hot topic in the aftermath of the Supreme Court’s upheaval in 2022 overturning abortion rights in the case Dobbs v. Jackson Women’s Health Organization.
In the aftermath of the Dobbs case, can state governments deny women the care they need to stay healthy, or does federal law provide some protection for patients?
In January, the U.S. Supreme Court agreed to hear two cases asking whether the federal Emergency Medical Treatment and Labor Act (EMTALA) supersedes Idaho’s strict abortion ban, which has one of the narrowest exceptions in the country, allowing doctors to intervene only if the life of the fetus is at risk. lifeIt’s a matter of patients’ lives, not their health. The Biden administration argued that federal law offers broader protections and trumps state bans. But on Thursday, the Supreme Court ruled it had taken up the issue too early, dismissing the case as “frivolously admitted” and sending it back to the U.S. Court of Appeals for the 9th Circuit.
In effect, Thursday’s ruling means that an Idaho district court order that agreed with the administration on EMTALA is back in effect, meaning that, at least for the time being, emergency access to abortion will be protected in the state.
At first glance, it might seem like abortion advocates have reason to rejoice: The Supreme Court’s conservative supermajority has agreed to hear two major abortion cases in one term. But Thursday’s ruling, and the court’s earlier decision that upheld widespread availability of mifepristone, the drug used in more than half of the nation’s abortions, didn’t make the situation worse for reproductive rights.
The truth is, the Supreme Court’s Idaho decision is itself something of a disaster. It will increase the confusion and chaos faced by women who need emergency abortions in states that have total or large abortion bans. And it contains important clues about what will happen when, or if, the justices have a chance to address these issues again. The bottom line is simple: don’t expect the Supreme Court to come to the rescue of women who desperately need an abortion.
In theory, all states that severely restrict or ban abortion have some sort of exception for threats to life or bodily safety. Patient HealthBut many of those exceptions are narrowly defined and difficult to understand, and states are imposing unprecedented penalties on doctors who perform abortions. do not In the case of exceptions (in some cases, life sentenceFor these reasons, doctors have been hesitant to intervene, even when patients fit the exceptions.
States are rushing to provide clarification, with some Legislature or Medical Committee Though they added clearer examples of when certain abortions can be performed, these moves only increased confusion. If an emergency is not on a state’s list, does that automatically mean a doctor cannot act? Are there state or federal constitutional limitations on denying access to patients who are at risk of death or suffering severe and permanent health damage? And what role, if any, does EMTALA play? The Supreme Court’s decision ensures that none of these questions will be fully answered in the short term, and that patients will pay the price.
This “thoughtlessly issued” decision has split the Supreme Court into three factions, with the center-right wing lining up with the liberals to dismiss the case and the most conservative justices, led by Justice Samuel A. Alito Jr., poised to rule that EMTALA does no good at all in limiting strict abortion bans.
Justice Amy Coney Barrett, joined by Justices Brett M. Kavanaugh and Chief Justice John G. Roberts Jr., agreed that it was premature for the Court to intervene, but did not seem opposed to accepting Idaho’s arguments against EMTALA. Even if the center-right justices could find a basis for granting patients EMTALA protections, they offered a Faustian bargain: The Court would interpret EMTALA to apply only to physical health, not mental health, and conclude that the law cannot prevent doctors with conscientious objections from refusing to treat patients, even if they were facing a life-threatening emergency.
Barrett wrote the opinion: Spiritual Health issues as a justification for abortion have been a perennial point of contention for those who see psychological distress during pregnancy as simply an excuse for “abortion on demand”.
We can guess what Barrett has in mind when it comes to conscientious objection, because Kavanaugh’s majority opinion in the Mifepristone case already spelled it out: instead of the law having to balance a doctor’s conscientious objection against patient safety, objecting doctors will be able to just say “no,” even in medical deserts where no other medical providers are available.
The most worrying sign of what may be in store for pregnant people was Justice Alito’s dissent in the decision to remand the Idaho case to a lower court. In a dissenting opinion joined by Justices Neil M. Gorsuch and Clarence Thomas, he wrote that EMTALA does not protect pregnant patients in life-threatening emergencies, but rather: Not born Instead, be patient.
Abortion opponents have long argued that the 14th Amendment Guaranteeing constitutional rights for the unbornAlthough Justice Alito did not explicitly address the issue, his interpretation of the law is consistent with the so-called fetal personhood doctrine. He argued that because EMTALA’s language includes the term “fetus,” its drafters must have prioritized the fetus over the mother, even when the mother’s life or health is at risk.
If the EMTALA cases return to federal court, the 2024 election could make it all moot. A second Trump administration would almost certainly revoke President Biden’s EMTALA guidance and allow states to decide for themselves when to withhold emergency treatment from patients. This is exactly what conservatives led by the Heritage Foundation are recommending in Project 2025, a proposed blueprint for President Trump’s reelection.
Abortion rights advocates may have breathed a sigh of relief on Thursday when the Supreme Court’s conservative majority ruled out an Idaho abortion case, but any celebrations will likely be short-lived. In reality, no relief is in sight for pregnant women facing the perils of a post-Roe America.
Mary Ziegler is a professor of law at the University of California, Davis, and author of Roe: The History of a National Obsession.