Supreme Court says emergency abortions can be performed in Idaho

Washington — The Supreme Court on Thursday allowed abortions to be performed during certain medical emergencies in Idaho, reinstating a lower court order that blocked the state from enforcing its near-total ban when an abortion is needed to preserve the health of the mother while legal proceedings continue.

The dispute pitted Idaho's measure, enacted after the reversal of Roe v. Wade, against a federal law that requires Medicare-funded hospitals to offer abortions when needed to stabilize a patient's emergency medical condition. 

The majority dismissed Idaho's appeal of a decision from the U.S. Court of Appeals for the 9th Circuit that kept the injunction in place. The Supreme Court in January allowed Idaho to enforce its ban in certain medical situations while it considered the case, but its ruling now dissolves that order. 

The justices split 6-3 in agreeing to lift its stay. The court issued a per curiam opinion, or "by the court," though several justices wrote separately to note their positions in the case. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented. 

The court did not address the underlying question of whether the federal law, the Emergency Medical Treatment and Labor Act, or EMTALA, trumps Idaho's near-total ban in certain circumstances. Instead, the decision indicates the Supreme Court believes it intervened in the dispute too soon. The case is likely to return to the high court after more proceedings.

Still, the ruling is a victory for the Biden administration, although likely a temporary one. The government has argued that EMTALA requires hospitals in states with the most stringent restrictions to offer abortions in certain medical emergencies when necessary to prevent harms to the mother's health.

President Biden said in a statement that the order ensures Idaho women have access to emergency medical care while additional proceedings take place in the lower courts.

"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," Mr. Biden said. "Doctors should be able to practice medicine. Patients should be able to get the care they need."

The decision's release came after Bloomberg reported that a copy of the opinion was posted on the Supreme Court's website inadvertently Wednesday. The outlet published the ruling, which showed that the court was set to allow emergency abortions in Idaho. The Supreme Court acknowledged a document was "inadvertently and briefly" uploaded, but said the opinion in the cases out of Idaho would be issued "in due course."

The Idaho abortion dispute

The case before the Supreme Court is the first since it overturned Roe in which the justices examined a state law restricting access to abortion. It also was the second case involving the procedure that was before the high court in its current term. In that other court battle, the justices rejected a challenge to a widely used abortion pill on procedural grounds, preserving access to it. 

This case involved whether the Biden administration could require Medicare-participating hospitals in states with stringent abortion bans to offer pregnancy terminations in certain emergency situations. The Justice Department argued that under EMTALA, the necessary stabilizing treatment required by the law may sometimes be an abortion.

Two months after Roe's reversal, in August 2022, the Biden administration sued the state of Idaho over its abortion ban. The law includes exeptions in cases of rape or incest, or to prevent the death of the mother. Physicians who perform abortions in violation of the law may be charged with a felony and face up to five years in prison.

But the Justice Department argued that EMTALA overrides state bans in instances where they conflict. 

A federal judge sided with the Biden administration and allowed physicians to perform abortions in certain emergency situations. The U.S. Court of Appeals for the 9th Circuit declined to pause that order while litigation continued, prompting the state and its Republican legislative leaders to seek the Supreme Court's intervention.

The high court agreed to consider whether EMTALA preempts state laws like Idaho's that prohibit most abortions, but allowed the state to continue enforcing its ban in full. It took up the case before the 9th Circuit had ruled on the merits. 

In a concurring opinion joined in full by Justice Sonia Sotomayor and in part by Justice Ketanji Brown Jackson, Justice Elena Kagan said that the court's decision will "prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to women." She said that Idaho's law conflicts with EMTALA's promise of ensuring patients receive stabilizing treatment, including abortion care, and the court was right to restore the lower court's order.

"Doing so will again give Idaho women access to all the needed medical treatments that EMTALA guarantees," Kagan wrote.

Justice Amy Coney Barrett, too, authored a concurring opinion that was joined by Chief Justice John Roberts and Justice Brett Kavanaugh. She lamented that the "shape of these cases" has shifted in the months after the Supreme Court agreed to step into the disputes, which convinced her that they "are no longer appropriate for early resolution."

"We should not jump ahead of the lower courts, particularly on such an important issue," Barrett wrote.

Though Jackson agreed with the court's decision to lift its stay, she wrote a separate concurring opinion to voice her opposition to its dismissal of Idaho's appeal. A clear answer to whether EMTALA supersedes state abortion bans is needed, Jackson wrote. She read a summary of her opinion from the bench.

"Today's decision is not a victory for pregnant patients in Idaho. It is delay," Jackson 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."

In dissent, Alito lambasted the court's decision as an "about-face" that he said is "baffling." 

"Apparently, the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents," he wrote. "That is regrettable."

The legal battle demonstrated the fallout from the Supreme Court's June 2022 decision unwinding the constitutional right to abortion, after which laws curtailing access to abortion took effect in 22 states. In seven of those states, including Idaho, abortion laws do not contain a health exception, according to the Justice Department.

Numerous doctors warned the Supreme Court that state abortion bans have left them confused and concerned that they could face felony charges for providing abortions in medical emergencies and have sought clarifications to the narrow exceptions from their state legislatures.

In Idaho, one health care system that filed a friend-of-the-court brief said many OB-GYNs have left the state because of confusion and fear as they attempted to navigate the new landscape for abortion care. It also said it's been transferring pregnant patients with emergency medical conditions to neighboring states amid concerns about the ramifications of delaying care and uncertainty about whether an abortion could be performed without violating the Idaho law.

No medical worker in the state has been charged or prosecuted for violating Idaho's ban so far.