Abortion ruling shows a Supreme Court splintered over emergency care

Doctors in Idaho can perform abortions in certain emergency situations without running afoul of the state’s strict abortion ban, at least for now, the U.S. Supreme Court ruled in a procedural but emotionally fractured decision.

The 6-3 dismissal of Moyle v. U.S. comes as the country continues to grapple with the legal and medical fallout from the court striking down a constitutional right to abortion two years ago. The majority's decision on Thursday to dismiss the case as improvidently granted surprised some court watchers expecting the justices to further restrict abortion access. However, that surprise mostly landed on Wednesday, when the decision was briefly available on the court’s website and was spotted by Bloomberg reporters.

The unsigned, one-sentence per curiam opinion does not resolve the central question in the case: Does a federal law requiring doctors to perform abortions in certain medical emergencies preempt Idaho’s law, which allows a doctor to perform the procedure only to save the life of the mother? All nine justices put their names to at least one of four separate opinions that accompanied the decision, making clear the sharp divisions on the court over that question.

And this issue, along with other abortion questions, is likely to return to the Supreme Court soon. A majority of the justices don’t appear keen to face them, however.

“It’s pretty clear that ... there are issues in the states, either between the states or between the states and the federal government, that will require Supreme Court intervention,” says Naomi Cahn, a professor at the University of Virginia Law School.

“The court is splintered on this issue,” she adds. And “you just see [it] deferring any further consideration of abortion.”

Kyle Green/AP/File

Jennifer Adkins and her husband, John, from Caldwell, Idaho, are suing the state after they had to travel to Oregon for medical care after their fetus was diagnosed with a fatal abnormality that threatened Ms. Adkins’ health. On June 27, the U.S. Supreme Court ruled that doctors in Idaho may continue to perform abortions in certain medical emergencies.

What constitutes a medical emergency?

The central question in Moyle is whether a provision of Idaho’s abortion ban is trumped by a conflicting federal law. The case dates from the immediate aftermath of the Supreme Court overturning the constitutional right to abortion in the 2022 case Dobbs v. Jackson Women’s Health.

In the ensuing months, Idaho passed a law prohibiting abortion in almost all circumstances. One exception held that a doctor could perform an abortion if it “was necessary to prevent the death of the pregnant woman.” Before that law could take effect, the Biden administration sued the state, claiming that Idaho’s law conflicted with the federal Emergency Medical Treatment and Labor Act (EMTALA). The government says the federal law requires a doctor to perform an abortion if they believe it’s necessary to “stabiliz[e]” a pregnant woman’s “emergency medical condition.”

A district court judge ruled in favor of the Biden administration, and stayed that provision of the law pending further appeals. An appeals court declined to put that ruling on hold while appeals continued. Before the appeals court issued a ruling on the merits, as is customary, the Supreme Court granted an emergency appeal by Idaho and allowed the law to go into effect in full while it considered the case.

The high court’s maneuvers have caused significant confusion on the ground. For five months doctors in Idaho have not known if or when they can legally perform abortions. The state’s largest hospital system said that in the three months after the court let Idaho’s abortion ban take full, temporary effect, it had to airlift six patients to other states for emergency care. In the 12 months prior, they had only needed to airlift one patient.

“We don't do elective abortions. We treat women who are having pregnancy-related emergencies,” says Jessica Kroll, an emergency medical doctor at St. Alphonse Health System in Boise.

It’s “really strange,” she adds. “Emergency [doctors] are now the center of the abortion battle.”

On Thursday, the justices effectively let both laws temporarily take effect. They punted to the appeals court the preemption question, but not without writing over 40 pages of separate opinions displaying pointed disagreements that will likely need to be resolved in the coming years.

“It's not a win for abortion rights in any kind of meaningful sense,” says Mary Ziegler, a professor at the University of California, Davis School of Law.

Abortion access in Idaho may change in the short term, but the case is effectively “starting all over at zero,” she adds. “There’s a lot of chaos that's been created in the aftermath of Dobbs. There's a lot of uncertainty about what physicians can and cannot do. And this isn't going to clarify anything.”

So what, if anything, changed?

The clearest explanation for Thursday’s unsigned per curiam opinion can probably be found in a concurring opinion written by Justice Amy Coney Barrett and joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

In her concurrence, Justice Barrett wrote that in the months after the Supreme Court agreed to hear the case, the facts changed to the point that there was no serious conflict left for the court to resolve.

“The parties’ [evolving] litigating positions have rendered the scope of the dispute unclear, at best,” she wrote. “I am now convinced that these cases are no longer appropriate for early resolution.”

Specifically, she noted the government’s claims during oral argument that federal conscience protections allow hospitals and doctors to refuse to perform abortions, even in the EMTALA context. She pointed to another government concession that EMTALA doesn’t require abortions as a means to stabilize a pregnant woman’s mental health.

On the other side, she noted concessions made by Idaho during oral argument that its abortion ban does permit abortions for certain specific medical conditions, even if the threat to the woman’s life isn’t imminent.

“Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA’s requirement is narrower than Idaho fears,” wrote Justice Barrett.

“The dramatic narrowing of the dispute,” she added, means that “Idaho’s ability to enforce its law remains almost entirely intact.”

Some of her colleagues disputed, in strong terms, the notion that the dispute has been narrowed. In a dissent, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, described the court’s “about-face” as “baffling.”

“Nothing legally relevant has occurred” since the court agreed to hear the case, he wrote, and the government’s preemption theory is “plainly unsound.”

The preemption question “is as ripe for decision as it ever will be,” he added. “Apparently, the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents.”

Meanwhile, writing separately, Justice Ketanji Brown Jackson agreed that resolving the EMTALA preemption question “remains as imperative as ever.”

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she wrote. “This court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

Idaho “changed [its] tune about the exact types of medical care that fall in the gap between state and federal law,” she added.

“Some of my colleagues appear to view this convenient rhetorical maneuver as a material change that (also conveniently) reduces the conflict between state and federal law to the point that a ruling from this Court is no longer warranted,” she continued. “But the fundamentals of this dispute remain the same.”

Are the justices ready for another Dobbs?

On the actual preemption question, the justices divided into a triad. While Justices Alito, Thomas, and Gorsuch agreed that the Idaho law isn’t preempted by EMTALA, Justice Jackson and Justices Elena Kagan and Sonia Sotomayor concluded the opposite. In her concurrence, Justice Barrett posited that the two laws can co-exist.

How courts will come down on the issue is unclear, but the division between the justices – and some immediate reactions to the ruling – suggest that complex, confusing debates lie ahead. 

“It’s going to become continually clear that pro-life laws allow for women to get critical medical care,” says Stephen Billy, vice president for state affairs at Susan B. Anthony Pro-Life America.

Meanwhile, in a statement, Idaho Attorney General Raúl Labrador said he “will continue my outreach to doctors and hospitals across Idaho to ensure that they understand what our law requires.”

What does this mean for doctors? And for pregnant women with medical complications? In Idaho, Thursday’s ruling has brought a degree of clarity to emergency rooms that they have been sorely lacking in the past five months, says Dr. Kroll, who is also president of the Idaho College of Emergency Physicians.

“We [were] on the phone with risk [management] and lawyers, while our patient right there needs immediate medical care, not legal mediation,” she recalls.

With the high court’s ruling “we get to go back to just taking care of patients [and] getting people appropriate standard of care,” she adds.

“The bad part of it is that it is like we're back in a waiting pattern again. ... It kind of puts me back on the edge of my seat.”

A federal appeals court will now pick up the Moyle case. Whatever that court decides may be appealed back to the Supreme Court. In a separate case out of Texas, the Biden administration is challenging a Texas abortion ban it claims is preempted by EMTALA.

Whether the high court has the appetite for resolving these issues is unclear, however. The justices heard two abortion cases this term – the other concerned an effort to ban a widely used abortion pill – and both cases were resolved on procedural grounds without confronting the more contentious merits questions.

“The court is really struggling with this issue,” says Professor Cahn. “Dobbs was a major decision. It simply might not be ready to issue another major decision like that.”