Supreme Court Rules Idaho Doctors Can Provide Emergency Abortions—For Now
On Wednesday, Bloomberg reported that the Supreme Court briefly uploaded a decision in the combined cases Idaho v. United States and Moyle v. United States, and then deleted it. The official decision, released today, confirms the Court has dismissed the case as “improvidently granted.” This means a previous district court injunction blocking full enforcement Idaho’s abortion ban will go back into effect, allowing doctors to provide emergency abortions. But it also allows litigation in the case to continue.
“For now, we can take a collective sigh of relief for pregnant people in Idaho,” Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky—which includes Idaho—said in a statement. “But the truth is that access to life-saving abortion care in an emergency should never have been in doubt. Protecting pregnant people in emergency situations is the bare minimum this court could do, and yet they kicked the decision down to a lower court.”
At issue in this case is whether the state of Idaho can fully enforce its abortion ban, which has a health exception that applies only when the pregnant person’s life is at risk. The federal government argues that this violates the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals that receive federal funds to provide “stabilizing” care to patients experiencing medical emergencies that threaten their life or health.
Before Idaho’s ban even went into effect, the federal government sued, arguing that EMTALA—a federal law—preempts Idaho state law. This is in line with the Constitution’s supremacy clause and long-standing judicial precedent in cases where federal and state law conflict. So the district court, determining that the government was likely to win its challenge, issued a preliminary injunction, blocking full enforcement of Idaho’s abortion ban and allowing doctors to provide emergency abortions as required by EMTALA.
Idaho asked the Ninth Circuit Court of Appeals to block that injunction. The Ninth Circuit declined, so Idaho asked the Supreme Court to intervene. The Supreme Court agreed to do so, and blocked the injunction, allowing full enforcement of Idaho’s ban while it considered the case.
“The on-the-ground impact was immediate,” Justice Elena Kagan wrote in her concurring opinion, joined by Justice Sonia Sotomayor and in part by Justice Ketanji Brown Jackson. “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 (when the injunction was in effect).”
The Supreme Court has now dismissed the case as “improvidently granted,” its way of effectively saying, “Oops, we shouldn’t have taken this case at this time.” This is not a decision on the merits of the case.
In fact, like the Court’s decision earlier this month in FDA v. Alliance for Hippocratic Medicine, the case regarding the medication abortion drug mifepristone, this is not a decision in favor of abortion access, or even a final decision on the case itself. Both issues are likely to make their way back to the Supreme Court in the fall when the next term begins.
What’s more, the decision applies only to Idaho. It will not affect another EMTALA-related case out of Texas, where the Fifth Circuit Court of Appeals ruled that EMTALA does not preempt Texas law, allowing hospitals to deny emergency abortion care. During oral arguments in Idaho v. United States, Solicitor General Elizabeth Prelogar (who happens to be from Idaho herself) said that, in addition to Idaho, there are six more states with abortion bans that violate EMTALA. This decision will have no bearing on any of them.
Though she concurred with the Court’s opinion in part, Jackson also dissented in part, arguing that instead of dismissing the case as improvidently granted, the Supreme Court should rule on the merits now.
“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” wrote Jackson, who also read aloud from her dissent today. “Our intervention has already distorted this litigation process. We permitted Idaho’s law to go into effect by staying the District Court’s injunction in the first place, then allowed this matter to sit on our merits docket for five months while we considered the question presented. It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened.”
Her dissent also referenced the Texas case, acknowledging that this issue will be back before the Supreme Court in no time.
“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. “This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.”
Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh and Chief Justice John Roberts, concurred with the majority, seemingly reassured by the federal government’s argument that EMTALA does not force physicians to participate in abortion care over religious or conscience objections.
EMTALA requires hospitals to provide emergency stabilizing treatment to patients regardless of their ability to pay as a condition of receiving federal Medicaid and Medicare funds. Barrett’s concurrence noted that Idaho “raised a difficult and consequential argument” about whether Congress “can obligate recipients of federal funds to violate state criminal law” in a spending bill. If enough justices are amenable to Idaho’s arguments, the future of EMTALA and other similar federal regulatory laws could be grim.
At least three justices are already on board with the idea that Congress exceeded its authority in using a spending bill this way: The argument features prominently in Justice Samuel Alito’s dissent, in which he was joined by Justice Clarence Thomas and in part by Justice Neil Gorsuch.
During oral arguments in April, Alito also focused heavily on the presence of the term “unborn child” in EMTALA’s text. In answer to his questions then, Prelogar explained that this wording was included in EMTALA because, at the time, pregnant patients were being turned away from hospitals when suffering from fetal health complications.
“It tells us that Congress wanted to expand the protection for pregnant women so that they could get the same duties to screen and stabilize when they have a condition that’s threatening the health and well-being of the unborn child,” Prelogar said. “But what it doesn’t suggest is that Congress simultaneously displaced the independent preexisting obligation to treat a woman who herself is facing grave life and health consequences.”
Kagan also touched on this in a footnote to her dissent, noting that “very large bipartisan majorities” in both houses of Congress “elected to broaden the provision, entitling a woman to demand care for her unborn child as well as herself” when they realized the original text of the law didn’t allow that.
Clearly, Alito disagrees. “To the contrary, EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child,’” he wrote in his dissent. Alito was joined by both Thomas and Gorsuch in this section of his dissent, meaning that at least three justices are open to arguments about fetal “personhood.”
“It’s critical we do not forget that conservative justices are flirting with the idea of fetal personhood in order to justify abortion bans,” the National Institute for Reproductive Health said on X.
Last fall, I spent ten days reporting on the ground in Idaho. What I found is that a total abortion ban, in combination with constant media coverage of legal developments just like this, had created a pervasive culture of fear around pregnancy in the state. I also reported on the systematic Christian nationalist takeover of state politics that led to Idaho’s abortion bans, and the locals organizing to take their state back.
Those locals have already notched some significant victories, including ousting 15 far-right incumbent lawmakers in recent primary elections. In statehouses and in courts, the battle for abortion rights is far from over.
