The Supreme Court Punts Again On Emergency Abortion Care, With Lives On The Line

The Supreme Court on Monday declined to take up a Texas emergency abortions case, further muddying the waters on what doctors in states where the procedure is outlawed should do when faced with patients in dire need of medical care — and raising more questions about what exactly the high court thinks it is doing on this topic.

In declining to take up the Texas case, the Supreme Court left in place a lower court ruling that rejected the Biden administration’s interpretation of a federal law, the Emergency Medical Treatment and Labor Act, which governs how hospitals that receive federal funds handle emergency care, including abortion. The Biden administration argued in Texas and, separately, in Idaho that EMTALA supersedes state-level restrictions on abortion care when abortion is necessary to save a person’s life or when the procedure will help prevent serious harm to the pregnant person’s health.

This argument grew out of one of the Biden administration’s primary responses to Dobbs: About a month after the Supreme Court’s infamous ruling, the administration sent guidance to hospitals that receive funding from Medicare, reminding them that, under EMTALA, emergency room doctors must still continue to perform abortions in some circumstances, even if the procedure is outlawed or restricted in the state. It was one of many efforts to reduce the initial harms of the SCOTUS ruling.

Texas was successful in suing the Department of Health and Human Services over the policy, arguing in District Court that the Biden administration had overstepped its authority. The 5th Circuit Court of Appeals upheld that decision after the Biden administration appealed it, ruling that the Texas ban doesn’t conflict with the federal emergency care law, despite the fact that the Texas six-week ban is exceptionally vague about exceptions.

In appealing to the Supreme Court, the Biden administration argued the Court should throw out the 5th Circuit ruling due to the high court’s ruling in the Idaho case, which had reached the Court last term. In June, the Supreme Court handed down a ruling that largely avoided the merits of the case, finding instead that it had simply taken up the case too soon, before it had been fully fought out in the lower courts. Though a bizarre outcome, it was a temporary reprieve in that it dismissed Idaho Republicans’ appeals of a preliminary injunction on their anti-abortion law, clearing the way for doctors to perform emergency abortion in Idaho if necessary.

Justice Ketanji Brown Jackson joined the minority and criticized her colleagues over their punt, saying it only kicked the can further down the road and that the Court would ultimately have to weigh in on federal emergency protections for doctors and patients in states where the procedure is outlawed or restricted. Per my colleague Kate Riga:

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. 

After that episode, the Court’s decision in the Texas case was understood to be the next chance for the Supreme Court to clear up confusion left in the wake of the Idaho ruling, and clarify whether the Court agreed with the Biden administration or with the states pushing for their bans to trump EMTALA. It turns out, however, that the Court will not take up this case after all, letting the lower court’s ruling stand and leaving the issue in a helplessly confused place.

Doctors are unclear on how to proceed due to the vagueness of the language in Texas and Idaho’s abortion bans about when a woman is sick enough for doctors to intervene. And advocates don’t know what the Monday decision means for emergency abortion care. Per WaPo:

“Given that neither exception is particularly clear, and the interpretation is ongoing, it’s not really obvious how different they are,” said Mary Ziegler, a law professor at the University of California Davis who specializes in abortion issues.

By refusing to consider the Texas case, months after sending the Idaho case back to lower courts, the Supreme Court has left all options open for future rulings on emergency abortions, Ziegler said.

“It’s just as likely that Idaho will win in a big way as it is that the Biden administration will win,” she said. “All of these outcomes are on the table.”

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