On Wednesday, in a little oopsie reminiscent of the notorious May 2022 Dobbs v. Jackson Women’s Health leak, the Supreme Court inadvertently posted its second abortion rights ruling of this term on its website before swiftly deleting it. And on Thursday, by a 6-3 margin, the court purposely released its opinion and officially ruled that yes, doctors can provide pregnant people with emergency abortion care without fear of prosecution… at least temporarily. But, as Justice Ketanji Brown Jackson wrote in her concurrence, “storm clouds loom ahead.”
The case, Moyle v. United States, involved Idaho’s near-total abortion ban and whether or not it can be fully enforced under the Emergency Medical Treatment and Active Labor Act (EMTALA), a decades-old federal law that states Medicare-funded emergency rooms must offer stabilizing care to patients—including, if necessary, abortion. But in its decision, the court merely ruled that the case was altogether “improvidently granted,” and reinstated a lower court ruling from 2022 that allowed doctors to offer some stabilizing, emergency abortions without being prosecuted under Idaho’s abortion ban.
After Dobbs overturned Roe v. Wade in 2022, a wave of states, including Idaho, activated trigger laws to enact abortion bans. The Biden administration quickly issued a guidance reminding hospitals of their obligation to provide stabilizing abortion care under EMTALA, regardless of their state’s abortion laws. Days before Idaho’s ban took effect that August, the Biden administration sued the state, arguing its ban was “invalid” and at odds with EMTALA, because the ban’s only stated medical exception is to prevent death. (There is also, technically, an exception for rape or incest—but only if the person files a police report and only in the first trimester. And that doesn’t exactly help doctors make determinations about when to intervene in medical emergencies.)
In light of the Supreme Court’s decision, at least for now, Idaho must adhere to federal law, and allow hospitals to provide emergency abortions without threatening doctors. But, as Jezebel’s Susan Rinkunas wrote shortly after the leak on Wednesday, this is hardly a triumph for abortion rights. “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,” Jackson wrote. As she emphasizes in her concurrence, this deferral to the lower court isn’t conclusive and could bring the case back within a matter of months. This means the case would hypothetically return to the Supreme Court after the presidential election, and, as Slate’s Mark Joseph Stern argues, the court’s maneuvering “reads like a politically motivated move to push an issue that’s toxic for the GOP past the 2024 election.”
Further, the court doesn’t offer any guidance on whether pregnant people actually have a fundamental right to emergency abortions—just as, in the recent case on medication abortion, the justices didn’t definitively rule that medication abortion can’t be restricted in future litigation.
In other words, the court punted.
“Will this Court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time?” Jackson wrote. “Or maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable States to flagrantly undercut federal law, facilitating the suffering of people in need of urgent medical treatment.”
During oral arguments for Moyle (named after Mike Moyle, the Idaho legislature’s Republican Speaker of the House who passed the ban) in April, Idaho argued that hospitals shouldn’t have to provide stabilizing abortion care—even, for example, when someone’s water breaks in the second trimester long before a baby could survive, which could lead to a life-threatening sepsis infection or hemorrhaging. Josh Turner, the attorney representing the state, couldn’t even state at what point a patient is considered close enough to death to receive stabilizing abortion care.
Also during oral arguments, Justice Kagan confronted Idaho’s lawyer about the impacts we’ve already seen from Idaho’s abortion ban, including the cases of six different patients requiring air ambulances to transport them out-of-state for emergency abortions. “It’s become ‘transfer’ is the appropriate standard of care in Idaho, but it can’t be the right standard of care to force somebody onto a helicopter,” Kagan said. She also writes about this in her concurrence: “The on-the-ground impact” of Idaho totally enforcing its ban “was immediate. To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year” before the ban.
Nonetheless, Justices Samuel Alito and Neil Gorsuch seemed to agree with Idaho’s argument that the embryo or fetus itself is a patient, whose rights can supersede the pregnant person’s. “Congress under EMTALA recognizes that there are two patients to consider in those circumstances. And the two-patient scenario is tough when you have these competing interests,” Turner said during oral arguments. But this isn’t true: EMTALA recognizes that the pregnant person is the patient first and foremost. While EMTALA calls for doctors to try to save the patient’s pregnancy if possible, this isn’t the case if doing so is at odds with the pregnant person’s life, and the pregnancy isn’t even viable.
Still, Alito pointed to the phrase “unborn child” in EMTALA, out-of-context, and asked, “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions? … Doesn’t that tell us something?” It tells us that the conservative justices were clearly eying a path toward fetal personhood. Even if this week’s ruling offers some temporary reprieve, that’s still terrifying. “The text of EMTALA shows clearly that it does not require hospitals to perform abortions in violation of Idaho law. To the contrary, EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child,'” Alito chillingly wrote in his dissent.
Ultimately, as Justice Amy Coney Barrett, who voted to overturn Roe in 2022, notes in her concurrence, despite this ruling—or perhaps because of its fecklessness—”Idaho’s ability to enforce its law remains almost entirely intact,” sans (for the time being) permitting emergency abortions. It’s neither the best news nor the worst news. But it does offer some relief that, for now, should a pregnant person in Idaho experience a medical emergency, they won’t have to worry about being refused care because anti-abortion extremists think fetuses are patients.
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