These Are Not Abortion Victories

The Supreme Court punted in the second abortion case this term, which means they've conveniently ensured that the eventual rulings will come out after the presidential election.

By Susan Rinkunas  |  June 26, 2024 | 4:38pm
Photo: Getty Images AbortionPolitics
These Are Not Abortion Victories

Update 6/27: The Supreme Court’s ruling in Moyle v. United States on Thursday was, as expected, the same opinion that was accidentally uploaded to its website on Wednesday.

The Supreme Court made an oopsie on Wednesday morning by accidentally posting an abortion ruling before it was ready to announce it. Bloomberg reports that the opinion in the emergency abortions case, called Moyle v. United States, was briefly posted on the court’s website, then removed. (The Biden administration sued Idaho in 2022 saying its abortion ban, which lacks a health exception, violated the Emergency Medical Treatment and Active Labor Act, a federal law that requires ERs to provide stabilizing care to patients, including abortion.)

But the EMTALA ruling doesn’t appear to be final. Bloomberg said the now-deleted copy showed the justices declaring that the case was “improvidently granted” and reinstating a lower court order that allowed doctors to provide emergency abortions without fear of prosecution—at least while the lawsuit moves through the appeals process. The vote in the draft was 6-3, with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissenting. That means Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett sided with the liberals.

This sounds like great news, and it is definitely a relief. But as Justice Ketanji Brown Jackson reportedly wrote in a concurrence, it’s not a cause for celebration, because the case could be back in their laps in a matter of months. Meaning it would hypothetically return after the election. “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.” (Meanwhile, a different appeals court said in January that Texas can ban emergency abortions.) She added: “But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law.”

Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, said in a statement that if the draft opinion is accurate, women and pregnant people are not out of the woods: “Make no mistake: The Supreme Court had the opportunity to hold once and for all that every pregnant person has the basic right to emergency abortion care, but it appears it failed to do so.”

Basically, the Supreme Court didn’t definitively decide that pregnant people have a right to emergency abortions, just like it didn’t definitively decide that the abortion pill won’t be restricted in the other reproductive rights case this term. In both cases, it punted.

Earlier this month, the Justices ruled unanimously that a group of anti-abortion doctors challenging mifepristone, a drug used for abortions and miscarriages, didn’t meet the legal requirements to sue the Food and Drug Administration, aka they didn’t have standing. Just like with emergency abortions, the Justices didn’t weigh in on the substance of the pill case—they only said that the lawsuit shouldn’t be on their desks right now. The court kicked the case back down to a far-right judge in Texas, who has already said that three Republican-led states can join the litigation. That case is far from over, which is why Sen. Tina Smith (D-Minn.) rightfully called the ruling “a reprieve, not a vindication.” Smith moved forward and still introduced a bill to amend the Comstock Act, an 1873 law that conservatives want to use to ban abortion pills.

Conveniently, the court kicking these abortion cans down the road means that the eventual rulings would come out after the presidential election—the same election where former President Donald Trump wants voters to think he believes that abortion laws should be left to the states, despite all evidence to the contrary.

The three conservative justices who reportedly voted with the liberals in the Idaho case may be hoping that the media will help them appear moderate. After all, they got a lot of glowing coverage in the abortion pill case, with headlines falsely declaring that the justices “protected abortion access,” when they did no such thing.

If the final ruling in the emergency abortion case is what was inadvertently posted on Wednesday, no one should be under the delusion that it’s a victory or a vindication—it’s just a punt.

 
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