Supreme Court punts emergency abortions ruling in draft opinion

Hospitals in Idaho would be required to obey a federal mandate to provide emergency care including abortions despite a restrictive state law, according to a draft Supreme Court opinion Bloomberg Law obtained Wednesday.

If the pending ruling proves consistent with the draft — which Bloomberg Law reported briefly appeared on the high court's website — it would not address the underlying question of whether the Emergency Medical Treatment and Active Labor Act of 1986, also known as EMTALA, preempts abortion bans in Idaho and other states.

The Supreme Court will take two specific actions, according to the draft 6-3 decision.

First, it will dismiss its own acceptance of two lawsuits seeking to resolve the federal-state dispute, saying consideration of the cases was “improvidently granted.” Second, it will restore a lower court ruling that ordered Idaho hospitals to provide emergency abortions under EMTALA. The Supreme Court heard oral arguments April 24.

Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson supported the decision and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, the document shows.

The Supreme Court confirmed that the draft ruling is authentic but not official. Justices are scheduled to release opinions Thursday and Friday.

The high court is not ruling on the cases' merits in part because the Idaho abortion law has been amended since the legal proceedings began two years ago and in part because both the U.S. Justice Department and the plaintiffs have changed their arguments over time, Barrett wrote in a draft concurrence joined by Roberts and Gorsuch.

The legal action now returns to the U.S. Court of Appeals for the 9th Circuit for further proceedings, suggesting it may be some time before the Supreme Court gets involved again.

Related: Supreme Court upholds full access to Mifepristone abortion pill

EMTALA mandates that hospitals that participate in Medicare treat or stabilize anyone who presents with a medical emergency, regardless of their ability to pay. That can include providing abortions to preserve the life or health of pregnant patients, the federal government asserts.

But more than 20 states have enacted statutes banning or limiting abortion since the Supreme Court overturned Roe v. Wade in 2022, which allowed states to establish stricter abortion laws.

Conflicts between the federal statute and state abortion laws have placed hospitals and clinicians in a predicament because it is unclear who has overarching authority, and the draft ruling does not resolve this controversy.

"Today's decision is not a victory for pregnant patients in Idaho. It is a delay," Jackson wrote while concurring in part and dissenting in part, according to the document.

"While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires," wrote Jackson, who argues the high court should have ruled on the actual cases.

In a draft dissent, Alito contends the Supreme Court has enough information to make a ruling. "This about-face is baffling," Alito wrote. "Everything there is to say about about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be." Thomas joined the dissent and Gorsuch joined it in part.

The Idaho abortion ruling would be the second abortion decision from the Supreme Court this term after it affirmed access to the drug mifepristone June 13.

Idaho v. United States

The draft Supreme Court opinion relates to Idaho v. United States and Moyle v. United States, the latter of which is named after its lead plaintiff, Speaker of the Idaho House of Representatives Mike Moyle (R).

The federal government pushed back on the Idaho abortion law almost immediately after it took effect, as part of President Joe Biden's emphasis on reproductive health and abortion access in the wake of the Supreme Court's Dobbs v. Jackson Women's Health Organization ruling, which itself went public ahead of the official announcement.

The Centers for Medicare and Medicaid Services issued guidance to providers in July 2022 specifying that EMTALA compels them to administer abortions to pregnant patients experiencing medical emergencies if necessary to stabilize them, even when state laws prohibit or restrict the procedure.

In August 2022, the Justice Department filed suit against the Idaho law in the U.S. District Court for the District of Idaho. That court swiftly ruled in the federal government's favor and imposed a preliminary injunction to stop Idaho from enforcing its law against providers that administer abortions in accordance with EMTALA. The district court declined to reconsider its rulings in May 2023.

Idaho and Moyle, representing the legislature, appealed to the 9th Circuit last June and July, respectively. A three-judge appeals panel overturned the district court in September. The following month, the full 9th Circuit restored the injunction and agreed to hear arguments. But shortly after, Idaho appealed to the Supreme Court, which agreed in January to take up the cases and allowed the state to enforce its law again.

Provider perspective

The hospital sector has mostly sided with the federal government, and three industry associations submitted an amicus curiae brief to the Supreme Court agreeing that EMTALA supersedes the Idaho law and objecting to the criminal penalties the state threatens against providers who perform abortions.

"Every day, pregnant patients arrive at hospital emergency rooms in the midst of grave health emergencies. When that happens, physicians, nurses and other qualified medical personnel must make split-second decisions about what care to give to those patients," the American Hospital Association, the Association of American Medical Colleges and America's Essential Hospitals wrote the Supreme Court on March 18.

"Allowing prosecutors, courts and juries to armchair quarterback these kinds of medical judgments — and impose criminal liability — will make the provision of emergency healthcare more challenging for providers, with potentially disastrous consequences for patients," the hospital groups wrote.

Members of the American College of Obstetricians and Gynecologists, the American College of Emergency Physicians and the American Medical Association "have long provided abortion as a necessary stabilizing treatment under EMTALA for pregnant patients in some instances," the physician organizations wrote in an amicus curiae brief to the Supreme Court on March 28.

"For nearly four decades, EMTALA has ensured that patients with emergency medical conditions, as defined by EMTALA, receive the care they require — but the Idaho law conflicts with that long-established requirement and creates a dangerous situation for both clinicians and patients," the medical societies wrote.