Per draft decision posted online, the U.S. Supreme Court will allow emergency abortions in Idaho – for now

Idaho physicians likely will be allowed to perform emergency abortions, according to a document briefly posted on the U.S. Supreme Court’s website Wednesday.

First reported by Bloomberg, the possible 6-3 decision is the first time the court has ruled on a state abortion law in the two years since overturning a nationwide right to end a pregnancy.

The expected ruling does not decide the merits of the case. Instead, three liberals and three conservatives on the court would send the issue back to a lower court – allowing emergency abortions to take place in Idaho while the case is adjudicated there.

At issue in the case is a 1986 federal law – the Emergency Medical Treatment and Active Labor Act, or EMTALA – requiring hospitals that receive Medicare funding to provide care needed to “stabilize” patients in a medical emergency.

The Biden administration argued Idaho’s abortion ban violates that law because it does not allow doctors in the state to perform abortions when the pregnant patient is at risk of a serious health problem – only when the patient is at imminent risk of death.

Late last year, a federal judge in Idaho blocked the state’s ban from stopping emergency abortions while the court case was adjudicated. But in January, the Supreme Court stepped in to take up the case and allowed the ban to go into effect. In the five months since, Idaho physicians have been barred from providing emergency abortions.

Wednesday’s decision reverses course – sending the issue back to appeals and again allowing doctors in Idaho to perform such emergency procedures. All three liberal justices ruled in the majority and are joined by conservatives John Roberts, Amy Coney Barrett and Brett Kavanaugh.

According to Seattle University School of Law Professor Deirdre Bowen, the decision posits the positions of Idaho and the federal government have “fundamentally changed” since they took up the case in January.

“The court is essentially saying that because they know more now than they did in January, it’s OK to say, ‘Just kidding’ and, ‘We made a mistake,’ ” she said.

In the draft opinion, Barrett states “briefing and oral arguments have shed more light” on the case than when they first took it up.

In the majority opinion, Barrett also says physicians should be allowed to continue performing emergency abortions while the case goes through the lower court. These abortions would not stop Idaho from “enforcing its law in the vast majority of circumstances,” she writes.

The mechanism by which the Supreme Court takes this reversal is “incredibly rare,” Bowen said – adding she was “very surprised at the ruling.”

The draft accidentally released by the court could be amended by the time a final decision is released, Bowen said, but she doubts the vote or outcome will change.

“As it is written now this decision has three blocks of three justices all saying different things. When you have this much plurality, it makes the decision look incredibly, incredibly ambiguous and weak, and by extension, it makes the Supreme Court look very weak at a time when the Supreme Court is not being held in high regard at all,” Bowen said.

In his dissent, Justice Samuel Alito said the court should have taken up the merits of the case now and decided in favor of Idaho’s abortion law.

“This about-face is baffling. Nothing legally relevant has occurred since January 5. And the underlying issue in this case … is a straightforward question of statutory interpretation,” Alito wrote.

Justice Ketanji Brown Jackson agreed the court should have decided the issue now, but in favor of the federal government.

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

The liberal justice also suggested the three conservatives in the majority only took this delaying tactic “as a tool for the court to use to avoid issues that it does not wish to decide.”

Bowen agreed with that assessment. Because of this ruling, a decision on the merits of the case will take years – far past the fall election. The decision makes the most sense looking at it from a political perspective, rather than a legal one, she said.

“The majority conservative justices are delaying this opinion because it’s an election year and they’ll decide it when it’s a more convenient time. That means waiting until they get what they hope is a Republican president and a legislature predisposed to changing EMTALA so that it aligns with a pro-life agenda,” Bowen speculated.

Local reaction to draft ruling

North Idaho abortion-rights activist and Pro-Voice Project director Jen Jackson Quintano said the ruling is a “relief” to those who need emergency care, but she did not plan to “crack a celebratory beer” over it.

“We’re just talking about emergency medical care, abortions in emergency situations where someone’s continued health or life is at risk. We’re not talking about bigger issues here. We’re just fighting for scraps,” she said.

CEO of Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky Rebecca Gibron echoed that sentiment.

“However the justices decide, we shouldn’t be here in the first place. Two years ago, this same court created a reproductive health care crisis across the country. No matter what, Planned Parenthood will be here to provide quality health care and support our patients,” Gibron said in a statement.

Idaho Senate minority leader Melissa Wintrow called the decision a “punt” to avoid the issue.

“Regardless of the decision, Idaho law won’t change much at all. Idaho Republicans have spent millions fighting the slimmest safety net for women in the hospital with a medical emergency. It is unforgivable and abhorrent we would be dragging women through this,” the Idaho Democrat said in an interview.

Anti-abortion rights organizations were not enthusiastic about the decision either.

Idaho Family Policy Director Blaine Conzatti said in a statement the organization was “disappointed” in the Supreme Court but not surprised by the outcome. Still, Conzatti does not anticipate the ruling will allow many abortions to take place in Idaho.

“Because ‘medical emergency’ exceptions have proven just as effective as ‘life of the mother’ exceptions in restricting access to elective abortions, we do not anticipate that the abortion rate in Idaho would increase as a result of this ruling,” he said.