'Storm clouds loom ahead' after Supreme Court dismisses abortion dispute, Justice Jackson says
The U.S. Supreme Court on Thursday turned aside an Idaho abortion dispute, which had the effect of blocking Idaho from enforcing its abortion ban in emergency situations. (Image from Shutterstock)
Updated: The U.S. Supreme Court on Thursday turned aside an Idaho abortion dispute, which had the effect of blocking Idaho from enforcing its abortion ban in emergency situations.
The Supreme Court dismissed the case as improvidently granted, a result expected after the high court briefly posted the opinion Wednesday, a mistake discovered by Bloomberg Law.
Although the Supreme Court’s dismissal is a temporary victory for abortion rights when a woman’s health is at stake, “storm clouds loom ahead,” Justice Ketanji Jackson Brown wrote in a partial dissent and concurrence.
“Three justices suggest, at least in this context, that states have free rein to nullify federal law,” Jackson said, citing a dissent by Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch.
“And three more decline to disagree with those dissenters on the merits,” she said, citing a concurrence by Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh. “The latter group offers only murmurs that ‘petitioners have raised a difficult and consequential argument’ about Congress’ authority under the spending clause.”
Barrett had written that the difficult argument was whether Congress “can obligate recipients of federal funds to violate state criminal law.” The issue wasn’t addressed by the lower courts, she wrote, and “we should not jump ahead” of them, “particularly on an issue of such importance.”
But Jackson didn’t agree with the dismissal.
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“So, to be clear: Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson wrote.
At issue was whether Idaho’s near-total abortion ban conflicts with a federal law requiring stabilizing emergency care at Medicare-funded hospitals. The law, the Emergency Medical Treatment and Active Labor Act, is known as EMTALA in shortened form.
The Idaho law allows abortions only to prevent a pregnant woman’s death but not to prevent serious harm to health. The Department of Justice had contended that EMTALA preempts Idaho’s law and allows abortions in cases involving serious harm.
The Supreme Court had stayed the injunction in January, a decision that had immediate impact, Justice Elena Kagan wrote in a concurrence.
“To ensure appropriate medical care,” Kagan wrote, “the state’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week.”
The Supreme Court’s dismissal of the case restores the injunction, which allows abortions once again in emergency situations in Idaho. But Jackson wasn’t satisfied with the outcome.
“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,” she wrote.
The dismissal was in two consolidated cases, Moyle v. United States and Idaho v. United States.
Updated June 28 at 10:22 p.m. to clarify a date in the second paragraph.
