By Brendan Pierson
(Reuters) – The U.S. Supreme Court’s ruling on Thursday allowing abortions for women facing medical emergencies in Idaho – for now – despite the state’s near-total ban on the procedure does nothing to lift the confusion in many states surrounding when emergency abortions are permissible, according to legal experts.
The case is one of several around the United States over when abortion is legally available in medical emergencies under exceptions to state abortion bans. Doctors have said that they are unable to perform abortions that they believe are medically necessary for fear of prosecution because it is not clear what is allowed, leaving pregnant women to travel to states with more permissive laws or wait as their medical conditions worsen.
But the Supreme Court did not address any of those issues, instead dismissing the case and sending it back to a lower court.
“The court has simply kicked the can down the road,” said Alexa Kolbi-Molinas, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project.
Anti-abortion groups also expressed disappointment that the Supreme Court did not decide the issue in their favor.
“Today’s Supreme Court decision is a setback, but our fight for babies and moms continues,” Susan B. Anthony Pro-Life America state policy director Katie Daniel said.
At issue in the case was whether Idaho’s abortion ban conflicts with a federal law requiring hospitals to stabilize patients with emergency medical conditions, the Emergency Medical Treatment and Active Labor Act (EMTALA). President Joe Biden’s administration in 2022 issued guidance stating that EMTALA overrides any state abortion bans when they conflict.
The administration sued Idaho in August 2022, claiming that Idaho’s law ran afoul of EMTALA and asked a court to stop the state from enforcing it in medical emergencies. It said EMTALA can require abortions that Idaho law prohibits because it requires doctors to consider the mother’s health, while Idaho allows abortion only to prevent her death.
A federal judge blocked the law, allowing emergency abortions to continue in the state. But the Supreme Court issued an emergency order allowing Idaho to enforce the ban again when it agreed to hear the state’s appeal in January.
Since then, Idaho hospitals have airlifted patients facing medical emergencies into other states for abortion rather than risk violating the state ban, according to court filings.
In Thursday’s order, the Supreme Court found it should not have agreed to hear the case in the first place because lower courts needed more time to work through factual and legal issues, and dismissed it – restoring the judge’s order blocking the law while the case proceeds.
“What they’re saying basically is, ‘Oh, just kidding, we got involved too soon,'” said Dale Cecka, a professor at Albany Law School.
Other lawsuits over emergency abortions will not be affected. Those include cases over interpreting state law in North Dakota, Indiana and Tennessee, as well as a Texas lawsuit over whether EMTALA overrides that state’s ban. The New Orleans-based 5th U.S. Circuit Court of Appeals ruled in favor of Texas in that case, and the Biden administration has asked the Supreme Court to review that decision as well.
Even for Idahoans, the ruling’s effect could be short-lived. The case will now go back to the San Francisco-based 9th U.S. Circuit Court of Appeals, which could again let Idaho enforce the law. The Supreme Court will likely weigh in on the issue eventually, either in the Idaho or the Texas case.
Laura Portuondo, a University of Houston Law Center professor who focuses on reproductive rights, said that dissenting and concurring opinions by the conservative justices signaled that the Supreme Court might be inclined to uphold the state law when it does consider it on the merits.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote in a dissent that the court should have heard the case and signaled agreement with the state.
Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, in a concurrence expressed interest in one of the state’s newer legal theories – that EMTALA, by tying its enforcement to federal healthcare funding, oversteps the government’s spending authority. Barrett called the argument “difficult and consequential.”
“I think that concurrence is very bad news for the Biden administration,” Portuondo said.
(Reporting By Brendan Pierson in New York, Editing by Will Dunham and Alexia Garamfalvi)
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