Jackson Dings Court For Punting On Abortion Case When Idaho Is So Clearly Wrong

BIRMINGHAM, ALABAMA - SEPTEMBER 15: Supreme Court Justice Ketanji Brown Jackson, the first Black woman on the nation's highest court, speaks at the 60th Commemoration of the 16th Street Baptist Church bombing on Sept... BIRMINGHAM, ALABAMA - SEPTEMBER 15: Supreme Court Justice Ketanji Brown Jackson, the first Black woman on the nation's highest court, speaks at the 60th Commemoration of the 16th Street Baptist Church bombing on September 15, 2023 in Birmingham, Alabama. Denise McNair, Addie Mae Collins, Carole Robertson, and Cynthia Wesley were killed September 15, 1963 when members of the Ku Klux Klan bombed the 16th Street Baptist Church in Birmingham, Alabama. (Photo by Butch Dill - Pool/Getty Images) MORE LESS
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Justice Ketanji Brown Jackson wrote alone in a major abortion ruling (officially) released Thursday, cutting through her colleagues’ posturing on why they needed to send the case back down to the lower courts. 

The case, centered on whether Idaho’s draconian abortion ban supersedes federal emergency room standards, she wrote, is an easy one — and one that the Court should decide now to avoid further suffering and confusion on the ground. 

“This months-long catastrophe was completely unnecessary,” she wrote of the Court’s preemptive intervention, allowing Idaho’s ban to reign for months. “More to the point, it directly violated federal law, which in our system of government is supreme.”

She pointed out that a similar conflict is bubbling up in other states, most notably Texas, in the face of the Court’s prolonged inaction. 

The Court decided, per curiam, that it should not have taken up the case early in the first place. Many experts came to that conclusion at the time, noting the ominous unusualness of the Court’s decision to insert itself before the Ninth Circuit Court of Appeals ever got a chance to hear the case. The Court also lifted the lower court’s injunction on Idaho’s ban, creating conditions so grim in the state’s emergency rooms that pregnant patients had to be airlifted to neighboring states where they could be treated. 

The decision is far from a win for abortion rights; it mostly just reroutes the case back through normal order. Some have speculated that it was a calculated move meant to avoid issuing a high-profile anti-abortion decision until after the election (though the Supreme Court almost certainly would not have had time to issue a final decision before then if it had butted out months ago, and let the case proceed normally through the appellate system). 

A draft copy of the opinion appeared in some form on the Supreme Court’s website Wednesday, and was obtained by Bloomberg News.  

Justice Elena Kagan wrote in concurrence, joined by Justice Sonia Sotomayor and by Jackson in part. Justice Samuel Alito, unsurprisingly, wrote a dissent, joined by Justice Clarence Thomas in full and by Justice Neil Gorsuch in part.

Alito employed a particularly tortured reading of the statute to find that the text of The Emergency Medical Treatment and Labor Act (EMTALA) is silent on abortion (it’s silent on all specific medical techniques needed to stabilize patients) and that requiring mandatory abortions could lead to a slippery slope where the government could also mandate, say, assisted suicides or “eugenic abortions.” 

Empathy for the women left to suffer, as ever in abortion cases, eludes him. 

“Idaho has always permitted abortions that are necessary to preserve the life of a pregnant woman, but it has not allowed abortions for other non-life-threatening medical conditions,” he wrote. “This balance reflects Idaho’s judgment about a difficult and important moral question. By requiring Idaho hospitals to strike a different balance, the preliminary injunction thwarts the will of the people of Idaho as expressed in law by their elected representatives.” 

While Kagan highlighted the legal simplicity of the case, Jackson most clearly cut through the fog. 

During oral arguments, some of the conservatives, namely Justices Amy Coney Barrett and Brett Kavanaugh, got palpably frustrated with Idaho’s lawyer whenever he pushed back on the hypothesis they were trying so hard to prove: that there is actually no gap between EMTALA’s mandate that federally funded emergency rooms must stabilize patients in crisis, and Idaho’s lone ban exception for saving the life of the woman. 

As the liberal justices said at the time, and Jackson underscored in her solo opinion, that obviously isn’t true. EMTALA springs to life to prevent hospitals from letting patients deteriorate, not just from letting them die. And while Idaho’s lawyer tried his best to muddy those waters, Jackson lambasted her colleagues for being so easily suckered. 

“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 wrote. “But it is both legally and factually implausible to say that Idaho’s current litigating position actually mitigates the conflict between that State’s law and EMTALA.” 

She pointed out that various serious medical conditions — preterm premature rupture of membranes, preeclampsia — will present differently in different people, making it impossible for doctors to guess the extent of the risk of death to the patient. 

“So it is strange, to say the least, that this Court would shirk its duty to resolve a pressing legal issue on the basis of representations that defy medical realities,” she wrote.

She added that even if you take Idaho’s constantly shifting position as ironclad — that many more medical emergencies than imminent death quietly qualify for the exception — the Idaho Supreme Court hasn’t signed on to that reading of the abortion ban, and neither have the prosecutors who are incentivized to enforce it.

Jackson also made plain that this decision should not be taken as a defeat for Idaho, or a win for the women temporarily and precariously allowed access to its emergency care. 

She seemed to be channeling Justice Harry Blackmun, the author of Roe, who wrote in a decision preceding Planned Parenthood v. Casey (which nearly everyone expected to overturn Roe): “For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”

“Storm clouds loom ahead,” Jackson echoed.

Three justices, Alito, Gorsuch and Thomas, assert “that States have free rein to nullify federal law.” Three more, she wrote, refuse to disavow that position, only “murmuring” that petitioners have raised a weighty argument. 

“So, as of today, the Court has not adopted Idaho’s farfetched theories — but it has not rejected them either,” she wrote. 

“So, to be clear: Today’s decision is not a victory for pregnant patients in Idaho,” she added. “It is delay.”   

Read the ruling here:

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Notable Replies

  1. I’m really thankful that Justice Jackson is on the Court. Good grief, can we make sure the three rational Justices have armed protection at all times, and maybe an ambulance that just follows them around.

  2. Yep, punting their monstrous decision until after the election.

  3. Idaho women seeking reproductive health care in Washington is up 50% since Idaho declared war on them.

  4. Avatar for jcs jcs says:

    Those men on the court, all cowards, all corrupt, all misogynistic. God help us get through this challenging time.

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