What to make of the US Supreme Court’s latest abortion ruling
Editor’s update: On June 27th the Supreme Court released its ruling in Moyle v United States. The published opinions match those in the document that was briefly posted in error on the court’s website the day before.
THE SUPREME COURT loves to keep America guessing. The justices say which days they “may announce opinions” but offer no whisper of which rulings are coming on a given day. On June 26th the court managed to raise the intrigue to new heights. After just two of a dozen pending decisions were released, Moyle v United States fleetingly appeared on the Supreme Court’s website.
The document vanished as unceremoniously as it arrived, but not before Bloomberg News grabbed a copy. Moyle addresses a stand-off between the Idaho Defence of Life Act—which bans abortion unless the fetus is conceived through rape or incest, or if the woman’s life is at stake—and then only in the first trimester—and the Emergency Medical Treatment and Labour Act (EMTALA), a law requiring hospitals that receive federal funding to provide “stabilising treatment”. The Biden administration says that includes abortion when a pregnancy threatens a woman’s health.
The court seemed split in the April 24th hearing. The inadvertently posted document reveals rifts, too. But it suggests that women in Idaho facing pregnancy-related health emergencies—including possible loss of reproductive organs—may soon have access to abortion. An amicus brief filed by the National Women’s Law Center stated that there are about 70 documented cases of pregnant women almost dying when they were denied care following state abortion bans enacted after the court overturned Roe v Wade.
The apparent ruling’s method for averting the madness is curious. Five justices appear set to dismiss the case as “improvidently granted”, leaving in place a lower court’s injunction curtailing the full force of Idaho’s ban. This off-ramp is ordinarily a sign that after oral argument, a majority concludes the case never should have been taken up in the first place.
Three conservatives (Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh and the chief, John Roberts) say both Idaho and the federal government have offered shifting arguments. Since “the parties’ positions are still evolving”, Justice Barrett wrote, it would be best to let the proceedings “run their course in the courts below”. Meanwhile, the two liberal justices agreed, but emphasised that the federal law trumps Idaho’s ban.
The document includes a dissent by Justice Samuel Alito (joined by Justice Clarence Thomas and, in part, by Justice Neil Gorsuch) that calls this analysis “plainly unsound”. EMTALA, Justice Alito writes, “does not require hospitals to perform abortions” at all. There is no need to dismiss the case; his colleagues have “simply lost the will to decide the easy but emotional and highly politicised question that the case presents”.
Justice Ketanji Brown Jackson rejects many of Justice Alito’s premises but agrees that dismissing the case is the wrong path. The same problem plagues women in Texas, where a court order allows the state to “flout” EMTALA. Moyle may afford Idahoans “a few months…during which doctors may no longer need to airlift pregnant patients out of Idaho”. But the court “had a chance to bring clarity and certainty to this tragic situation”, she wrote, “and we have squandered it.” ■
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