Michael Brochstein/Sipa USA via AP Images
Women with signs at a rally for reproductive rights in front of the Supreme Court in Washington, June 24, 2024
On Thursday, the Supreme Court backed away from any definitive decision on some of the nation’s most restrictive abortion laws, instead making an apparently politically motivated choice to punt a case challenging Idaho’s near-total ban on the procedures back to the lower courts.
The case, Moyle v. United States, involves a conflict between Idaho’s extreme anti-abortion laws and the federal government’s Emergency Medical Treatment and Labor Act (EMTALA), a 1986 law requiring hospitals that receive federal funding to stabilize emergency patients. The Court’s ruling, which was leaked a day early, essentially holds that it should have never heard or taken up the case in the first place—in technical terms, that its earlier acceptance of the case was “improvidently granted,” and should be retracted.
Instead of definitively ruling on which law—Idaho’s or the federal government’s—should take precedence, the ruling leaves in place for now a lower court’s decision in favor of EMTALA, meaning that hospitals in Idaho must provide emergency abortions for patients whose health is at risk.
It’s a small victory for the Biden administration, but it does nothing to address the kind of draconian laws recently enacted in Idaho and elsewhere, which ban abortion even when a woman might suffer infections and organ failure, and only allows it when “necessary to prevent the patient’s death.”
The conservative justices may be backing off their earlier positions in Dobbs because of the popular backlash to that anti-abortion ruling.
The complicated terrain of abortion restrictions across the country, which put pregnant patients and doctors at risk, is no closer to a clear resolution. In fact, the challenge against Idaho’s law could soon circle back to the high court, and the federal government already has a pending application seeking to challenge similar abortion restrictions in Texas.
Perhaps the most notable aspect of the decision was the breakdown of how the justices voted on the question—and the highly unusual fact that a majority of them wrote separate opinions that clearly and fundamentally reject the premise that the main ruling (which some of them had joined) relied on.
In other words, a majority of the justices agreed to punt on the case, but a different majority also agreed that the basis and “justification [for that outcome] is patently unsound,” as right-wing justice Samuel Alito put it in his dissent.
There’s perhaps only one way to understand that: The liberal justices joined a ruling they believe to be unprincipled, based on political and practical realities regarding women’s rights and the Court’s extremist conservative makeup; and three of the conservatives simply made a political calculation that ruling on the case ahead of an election—and yesterday’s debate—might not be so good for Republican politicians, or the Court’s own plummeting reputation.
The conservative justices may be backing off their earlier positions in Dobbs, in other words, because of the popular backlash the country has witnessed in response to that anti-abortion ruling, or the political hit Republicans suffered during the 2022 and 2023 elections. Indeed, Justice Ketanji Brown Jackson essentially said as much, writing that the procedure to send the case back to the lower court should not be “turned into a tool for the Court to use to avoid issues that it does not wish to decide.” And even Alito agreed on that point, throwing in a possible reference to a sexist trope about hysterical women for good measure: “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents.”
The Court’s main opinion was unsigned, and it didn’t explain at all why the justices had voted to send the case back to the trial court. But three of the conservative justices who voted for that majority decision wrote separately to explain that the basic reason is their belief that the situation on the ground has changed.
Since “we granted certiorari, the parties’ litigating positions have rendered the scope of the dispute unclear, at best,” Justice Amy Coney Barrett wrote in a concurring opinion, joined by Justices Brett Kavanaugh and John Roberts.
Barrett wrote that the government originally argued that federal law requires physicians to perform abortions in many cases where a woman’s health is at risk, including to prevent jeopardy to a woman’s mental health; but the government has since disavowed that notion, she said. On the other hand, there was a dispute about whether Idaho’s law allows doctors to perform emergency abortions if a woman suffers placental abruption, severe heart failure, or sepsis, for example, but “in this Court, petitioners represent that the Act permits physicians to treat each of these conditions with emergency abortions, even if the threat to the woman’s life is not imminent,” Barrett wrote.
The Court, in other words, took Idaho’s lawyers at their word—despite the fact that the state’s law still says something quite different from their in-court representations, as conceded even in Barrett’s concurrence (“To be sure, the text of the two laws differs,” Barrett wrote).
But all of the other justices, six of them, including conservatives Clarence Thomas, Neil Gorsuch, and Alito, stated plainly that it’s simply wrong to conclude that there is no longer a clash between federal law (requiring emergency care, including abortions) and Idaho’s law (banning almost all abortions).
Here’s Alito, Gorsuch, and Thomas: “The Justices who have joined Justice Barrett’s concurrence claim that the parties’ briefs and oral arguments seem to have narrowed the degree to which EMTALA, as interpreted by the Government, conflicts with the Idaho law, but all the parties continue to insist that the laws conflict,” Alito wrote. “Nothing legally relevant has occurred since January 5,” when the Court allowed Idaho’s law to go into effect.
And here’s Sotomayor and Kagan: “Idaho has never suggested that its law would allow an abortion” for a woman who comes to an emergency room with a preterm rupture of their amniotic sac, for example. (Despite this, Sotomayor and Kagan joined the majority ruling, perhaps to avoid letting conservatives decide the case on the merits in favor of Idaho.)
And Jackson: “Idaho’s lawyers may have changed their tune about the exact types of medical care that fall in the gap between state and federal law, but the fundamentals of this dispute remain the same.”
Jackson also added that local prosecutors, legislators, and other state actors continue to suggest that they will, in fact, prosecute doctors who violate their confusing laws, regardless of what the state’s lawyers might have said during oral arguments.
That even the Court’s three liberal, female justices would fall back on the fertility argument underscores just how conservative the Court is on reproductive rights.
In short, six of the nine justices disagreed with the basis for the ruling in what would normally be termed the “majority” opinion. Under those circumstances, it’s hard to argue against Jackson’s conclusion that her colleagues acted to avoid deciding a difficult question, rather than interpreting and applying the law in good faith. And it’s also hard to ignore that the Court chose a moment that is politically advantageous to Republicans to do so.
The ruling was also striking in terms of how some of the liberal justices sought to appeal to their mostly male (except for Barrett) colleagues.
Throughout their concurring opinion, Justices Kagan, Sotomayor, and Jackson seemed to argue that the potential loss of fertility is one of the worst, if not the worst, health risk of pregnancy. Explaining the gap between Idaho’s law and EMTALA, Justice Kagan wrote that a patient could risk “damage to her uterus, preventing her from having children in the future.” The threat to fertility is mentioned three times more throughout the concurrence, including in its first sentence.
Loss of fertility is a devastating outcome of pregnancy, to be sure, but there are many other considerations in a dispute focused on protecting women’s health. Severe infections, organ damage, blood clots, hypertension, heart attacks: That’s just a sampling of the health issues that can affect pregnant people, as numerous doctors laid out in their briefs to the Court.
That even the Court’s three liberal, female justices would fall back on the fertility argument—focusing on theoretical future children, rather than the pregnant patients themselves—underscores just how conservative the Court is on reproductive rights. Indeed, at one point, justices Alito, Thomas, and Gorsuch state outright their belief that this is less a matter of pure legal interpretation than it is about morality, and perhaps religion. The state’s laws “reflect Idaho’s judgment about a difficult and important moral question,” Alito wrote.
Faced with that sort of opposition, some of the liberal justices likely emphasized fertility because it provokes some sympathy across the ideological spectrum. Still, focusing on fertility over other aspects of women’s health implicitly places hypothetical children above real, living women, which is the same logic used by anti-abortion extremists.
“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson wrote in her own concurring opinion.
As even three conservative justices admitted, there is no sound principle behind the ruling—just a very obvious political calculation.
