Just four months from a presidential election, the Supreme Court dismissed a major abortion case on Thursday, delaying a final decision on whether a federal law mandating that hospitals provide emergency medical treatment includes the right to medically-necessary abortions.
The decision to return the case to the lower courts contains the makings of what could be a major loss for abortion rights. “Storm clouds loom ahead,” Justice Ketanji Brown Jackson wrote in dissenting from the decision to dismiss the case. It’s stark language to take seriously, and the decision contains many kernels that explain her ominous warning.
But first, the basic facts. This case pitted Idaho’s extreme abortion ban, which does not allow abortion to protect the health of the mother, against the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals to provide stabilizing medical treatment to all or risk losing Medicare funding. The question before the court was whether EMTALA pre-empted Idaho’s ban and guarantees abortions to women who need them to resolve a medical emergency, including such dire crises as stroke, kidney failure, hemorrhage, sepsis, and possibly death. By a vote of 6-3, the court allowed emergency abortions to resume in Idaho, with Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissenting. Five of the justices also voted to return the case to the lower courts rather than issue a decision.
This is the second abortion case the court has decided—or rather, declined to decide—this term. Two weeks ago, in a highly anticipated ruling on the legality of the abortion pill Mifepristone, the justices unanimously found that the plaintiffs did not have standing to bring their claims. This decision was correct, but it left the door open to arguments against the abortion pill by other plaintiffs. It also avoided the scenario of Mifepristone going off the market months before the presidential election, which would have heightened the contest’s role as a referendum on abortion rights—almost certainly to the benefit of the party that supports those rights.
