In the terrible days of clandestine abortion, we talked about abortions gone wrong. Moyle v. United States is a failed abortion case. It was doomed from the start by the Supreme Court itself, and the conservative justices aren't done with it yet.
Don't be put off by the final conclusion; it's probably temporary. Indeed, at this point, pregnant Idaho women facing serious but non-life-threatening health risks unless they get an abortion should not have to be airlifted out of state to get adequate medical care.
Yet for months, pregnant women who found themselves in that dire and unwanted situation had to do just that, as the courts tried to intervene in the case and conservative judges ultimately failed to rule on the case, leaving Idaho's strict law in effect.
And in the meantime, because the justices have not ruled, pregnant women in the other six states with equally cruel abortion laws, with no exceptions for the life of the mother, will face the same ordeal, with threats of outcomes like coma, stroke, amputation, hysterectomy, organ failure, etc. So this is not a victory for pregnant women in distress, but rather a temporary reprieve, and likely only for a portion of them.
Conveniently for Republicans worried about the abortion issue gaining prominence in November, the court's delay will delay a final decision in the case until after the election — a decision that seems likely to be in Idaho's favor based on Thursday's ruling.
Follow this author Ruth Marcus' opinion
If Donald Trump wins in November and the new administration abandons the Biden administration's interpretation of emergency medical law, then, conveniently for some judges, this uncomfortable issue may simply disappear without them having to rule on it.
“Denied as frivolous” is just that, the technical term for the court's final disposition of the case, which was officially announced Thursday after a posting error the day before. Given the conservative court's voting record, this outcome may have been for the best.
But what was arguably granted with impunity was the court's order imposing this additional harm on pregnant women because of the threat of irreparable harm — an order not against pregnant women, but against the state of Idaho and, presumably, that state's sovereign interest in ensuring that the fertility of women who desire children is impaired.
Let me explain. After a 2022 ruling eliminated constitutional protections for abortion rights, the Biden administration sued the state of Idaho under a federal law, the Emergency Medical Treatment and Labor Act (EMTALA). This law requires hospitals to provide “stabilizing” care to patients who show up to emergency rooms. If hospitals fail to do so, they risk losing Medicare funding.
The district court tentatively agreed with the Biden administration, saying that EMTALA supersedes state law in limited circumstances where there is a serious threat to the mother's health. An all-Trump appointee panel on the U.S. Court of Appeals for the 9th Circuit disagreed, and the entire court upheld the district court's argument. So Idaho appealed to the Supreme Court before the litigation had even begun in earnest.
And not only did the Supreme Court take the unusual step of bypassing the appeals court and granting certiorari before the decision (recall, this is the same step that special counsel Jack Smith sought but was denied in President Trump's immunity lawsuit), it also allowed the Idaho law to remain in effect while it considered the case.
In a Thursday opinion, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, said the motion to speed up the case, and the accompanying stay, should never have been granted in the first place. “EMTALA requires hospitals to provide abortions that are prohibited by Idaho law,” Justice Kagan wrote. “As such, Idaho law prevails.”
The reasoning of the six conservative justices was far more problematic. Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch dissented entirely from the decision to dismiss the case.
“Far from requiring hospitals to perform abortions, EMTALA's language explicitly requires Medicare-funded hospitals to protect the health of pregnant women and 'fetuses,'” Alito wrote.
This is pure sophistry. Congress amended the law to include this provision after it became clear that some hospitals were trying to turn away pregnant women in situations where the fetus, not the health of the mother, was at risk. Its purpose is to give mothers and babies additional protections, not, as Justice Alito argues, to require hospitals to trade off one right for another.
More troubling still are the views held by three justices considered moderate – Justice Amy Coney Barrett, Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh – whose positions will determine the ultimate outcome.
Barrett said defenders of Idaho's law are “raising a difficult and significant debate” about “whether Congress can require recipients of federal funds to violate state criminal law.”
Hard? Jackson aptly called it a “trick.” Congress has the unquestioned power to attach conditions to people receiving funds it appropriates, and it routinely does so with Medicare. When Congress does so, it supersedes state law and is supreme law under the Constitution. Case closed.
Attorney General Elizabeth B. Preloger said during oral argument: [Idaho] “What the state wants is for its hospitals to be able to accept Medicare funds and not face the restrictions that come with that money as a critical part of the deal. And there is no precedent that would support such an outcome.”
Perhaps the most passionate passage in the case came from Jackson, who wrote a dissenting opinion for the court. She argued that the court had a duty to decide the case, not to flee. Even if an injunction barring Idaho from enforcing its law under certain circumstances were to be reinstated, she argued, doctors who face the risk of criminal prosecution would be understandably hesitant to perform abortions.
Yes, but immediate uncertainty may be better than an immediate loss, and that is the unfortunate situation in which this court has placed pregnant women and the doctors entrusted with their care.
