Justice Ketanji Brown Jackson is sounding alarm bells for pregnant patients.Rod Lamkey/CNP/Zuma
Just four months from a presidential election, the Supreme Court dismissed a major abortion case on Thursday, delaying a final decision on whether a federal law mandating that hospitals provide emergency medical treatment includes the right to medically-necessary abortions.
The decision to return the case to the lower courts contains the makings of what could be a major loss for abortion rights. “Storm clouds loom ahead,” Justice Ketanji Brown Jackson wrote in dissenting from the decision to dismiss the case. It’s stark language to take seriously, and the decision contains many kernels that explain her ominous warning.
But first, the basic facts. This case pitted Idaho’s extreme abortion ban, which does not allow abortion to protect the health of the mother, against the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide stabilizing medical treatment to all or risk losing Medicare funding. The question before the court was whether EMTALA pre-empted Idaho’s ban and guarantees abortions to women who need them to resolve a medical emergency, including such dire crises as stroke, kidney failure, hemorrhage, sepsis, and possibly death. By a vote of 6-3, the court allowed emergency abortions to resume in Idaho, with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissenting. Five of the justices also voted to return the case to the lower courts rather than issue a decision.
This is the second abortion case the court has decided—or rather, declined to decide—this term. Two weeks ago, in a highly anticipated ruling on the legality of the abortion pill Mifepristone, the justices unanimously found that the plaintiffs did not have standing to bring their claims. This decision was correct, but it left the door open to arguments against the abortion pill by other plaintiffs. It also avoided the scenario of Mifepristone going off the market months before the presidential election, which would have heightened the contest’s role as a referendum on abortion rights—almost certainly to the benefit of the party that supports those rights.
In Thursday’s decision, there is evidence that politics played an important role in the court dismissing the case rather than deciding it—and that when the court does rule on the matter, it may be yet another blow to women’s health and autonomy.
First, of the six Republican appointees on the court, the three who chose to dismiss the case are its politically savviest, who seem to care about the court’s reputation and the political consequences of its decisions: Chief Justice Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. In a concurrence representing all three, Barrett argues that both the federal government and Idaho had made concessions in their arguments to the court which bring the two parties closer together and merit a first look by the lower courts.
But their colleagues called out this rationale as suspect. Alito explicitly accused his colleagues of political motives. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” he wrote in his dissent. Jackson, similarly, charged Barrett, Roberts, and Kavanaugh with avoiding issues they do “not wish to decide” and described their logic as “an escape hatch” that avoids “a merits ruling in these cases.”
The decision to dismiss needed five votes, and the final two came from two Democratic appointees, Justices Sonia Sotomayor and Elena Kagan. But their decision was rooted in a different place. As Kagan explained in a concurrence joined by Sotomayor, Idaho’s arguments were always too weak to merit the emergency relief the Supreme Court had previously granted by allowing its ban to fully take effect while taking up the case. In other words, Kagan and Sotomayor (along with Jackson) believe Idaho should lose this case. In this, however, they may be alone.
If Jackson, Sotomayor, and Kagan’s opinion that Idaho must lose were a majority opinion, the case would have been resolved. But when they lack the votes for a majority, Sotomayor and Kagan have shown a willingness to compromise with their GOP-appointed colleagues in order to mitigate or delay harmful outcomes. Today’s dismissal has all the appearances of another such compromise. By delaying a decision that would gut emergency abortion care in many states, Sotomayor and Kagan teamed up with their more pragmatic conservative colleagues to give Idaho women a little more time to get emergency abortions and maintain EMTALA’s protections in some, but not all, states.
There’s a logic to making this compromise, even if it benefits Republicans: A lot can change, in even a few months. Perhaps they believe a few of their colleagues, maybe Barrett or Roberts, can be persuaded to rule against Idaho. Perhaps the makeup of the court will change. Nothing is done until it is done.
Jackson opted not to take this bargain—nor does she need to, as her vote is not necessary to reach a majority for delay. Instead, she urges the court to forge ahead even while warning that it’s disposition will likely be grim. And she has evidence.
First, Alito, Thomas, and Gorsuch all agree, per Alito’s dissent, that Idaho should win on the merits. They do not believe that EMTALA requires abortions when they are the only treatment that could stabilize a medical emergency. Nor do they believe that the law can pre-empt state abortion bans—a radical vision of a federal government potentially hamstrung in its effort to protect abortion rights post-Dobbs.
Further, Alito and company question whether EMTALA can preempt state criminal laws because EMTALA is enforced by withholding federal funds to hospitals. Legal commenter and former federal prosecutor Harry Litman said that their notion that “federal law doesn’t preempt Idaho” was “alarming” and described it as “among the most radical & portentous opinions from that trio yet.” Barrett’s concurrence is also curious about the use of federal funds to negate state criminal laws, calling it “a difficult and consequential argument” that the lower courts should tackle first.
Jackson does the math for us. “Three Justices suggest, at least in this context, that States have free rein to nullify federal law,” she says, referencing Alito, Thomas, and Gorsuch. “And three more decline to disagree with those dissenters on the merits,” she says of Barrett, Roberts, and Kavanaugh. “The Court has not adopted Idaho’s farfetched theories—but it has not rejected them either.”
Taken together, it’s clear there is not currently a majority to recognize a right to emergency abortions in EMTALA and protect that right from extreme state abortion bans—if that majority existed it would have won the day. Instead, three conservative justices decided to push the outcome beyond the next election, almost certainly because anti-abortion opinions are unpopular and harm Republicans’ political prospects.
It would be harder to presume political motives if the justices had, historically, steered clear of them. But over and over again, these GOP-appointed justices have made decisions about the timing of cases that betray political considerations in favor of Republicans and Donald Trump. In this term’s case over whether Trump is immune from criminal prosecution for actions taken while in office, the court has helped Trump’s re-election effort by repeatedly delaying a resolution and therefore pushing his trial to after the election. (Despite multiple pleas for expediency, the court still hasn’t released its opinion.)
But in February, the court did act with speed when it helped Trump. After the Colorado Supreme Court found he was ineligible to appear on the state’s primary ballot because he had engaged in insurrection, the high court rushed to reinstate Trump on the ballot. Further, five GOP appointees placed new limits on the constitutional prohibition on insurrectionists holding office that were unnecessary in order to resolve the case. “Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President,” the Democratic appointees warned.
In voting cases, the court has likewise timed decisions to help Republicans. This term, the court dragged its feet in resolving a racial gerrymandering case out of South Carolina for so long that the state was forced to proceed with a GOP-drawn map that a district court had invalidated as unconstitutional—although the conservative justices ultimately upheld the map.
Delay in the EMTALA case, as Jackson points out Thursday, is not a victory for the safety of pregnant people. The law is on shaky ground. Even in Idaho, she notes, “doctors will still have to decide whether to provide emergency medical care in the midst of highly charged legal circumstances with no guarantee that this fragile detente over the State’s categorical prohibitions will be maintained.” In other states, EMTALA’s meaning and enforceability remain uncertain. And in three states, Texas, Louisiana, and Mississippi, it does not protect people who require emergency abortions, thanks to a January decision by the Fifth Circuit Court of Appeals. That decision, by the way, is now pending before the Supreme Court.
That means that, even as the court delays in Idaho’s case, EMTALA could return to the justices in a matter of months. But, conveniently, it would be there after a presidential election—not before it.
