This Is Not a Victory for Abortion Rights

Idaho women are temporarily safer thanks to an accidentally-published ruling. But the Court is biding its time.

Photo by Jackie Hope on Unsplash

Last night, the Supreme Court seems to have accidentally(?) published, and then un-published, an unsigned opinion in its final big abortion case of the year, upholding a lower court ruling that sided with the Biden administration in requiring that hospitals perform life- and health-saving abortions where needed.

This is good news for obvious reasons, chief among them that “women don’t deserve to die or become disabled because they got pregnant in an anti-abortion state” really should not be up for debate. With this decision, Idaho women still won’t have basic abortion rights, but they will at least have the same rights as everyone else to be medically stabilized if they find themselves pregnant and in an emergency medical situation.

Here’s the thing, though: The Supreme Court did not decide this case on the merits. It punted by dismissing the case on procedural grounds. That means there is no final decision on the question of whether states can treat pregnant patients differently than non-pregnant ones in emergency settings by refusing them necessary stabilizing care to preserve their health – something that violates federal law in every other context.

Is it a coincidence that this happened in a presidential election year in which the Supreme Court’s earlier decision to overturn Roe v. Wade and throw American abortion law into chaos remains a huge driver of voter outrage?

This case is fairly straightforward. There is a federal law called EMTALA, which requires that hospitals care for patients, no matter a patient’s ability to pay. Hospitals have to offer life-saving care; if they are not capable of providing that care, they have to stabilize the patient before transferring them.

Many abortion bans conflict with this law, because they do not allow the procedures to save a woman’s health. Women have shown up to emergency rooms miscarrying or experiencing other serious pregnancy complications for which termination is the standard of care to prevent potentially deadly infections, organ loss, hemorrhage, or other health- or life-threatening problems. Idaho’s abortion ban, though, threatened doctors with prison time if they terminated a pregnancy to, say, prevent a woman from going septic or prevent her from having an emergency hysterectomy. No other category of patients is treated as an exception to a generally-applicable federal law; there is no one else who would walk into an Idaho emergency room and find that they are legally barred from receiving the federally-mandated stabilizing care they would get if they had walked into a hospital in neighboring Washington. These extreme abortion bans strip federal protections from pregnant women. And the “pro-life” movement is pushing for more of them.

These bans are also really really unpopular while EMTALA protections are tremendously popular, because no one except a minority of extremely crazy people think you should allow women or anyone else to die, or have their uteruses removed, or go into septic shock when those things could be easily prevented, and when the pregnancies in most of these cases are over, ending, or very likely to end. This is not about saving babies (doctors do, in fact, try to preserve both fetal and maternal life, but in many cases, fetal life cannot or is unlikely to be preserved). This is about making women suffer needlessly worse outcomes, and refusing pregnant women equal protection under the law. Upholding the Idaho law is the kind of thing that could really piss off already-pissed-off voters. And those voters are going to the polls in just a few months to elect a president.

The Supreme Court is currently in a stage the kids call “fuck around and find out.” I honestly believe that at least a few of the totally out-of-touch conservative justices genuinely thought that they could overturn Roe and the states would simply have civilized debates over their own residents’ abortion law preferences, that we would see a range of abortion laws on the books reflecting the general inclinations of people who live in states with pretty varied populations, and that this long-contentious issue would finally be put to bed. Anyone, of course, who regularly ventures outside of conservative constitutional law classrooms or the canapes-in-colonials Virginia mansion dinner party circuit could have told you that this was not how it would all pan out – that American women would be pissed, that even much of the not-thinking-about-abortion public would be stunned, and that stories of desperate women needlessly suffering the way they have under every abortion ban everywhere in the world would be shocking and radicalizing in a nation where abortion was safe and legal for a half-century.

The judges who still seem to care at least a little bit about the court’s legacy and legitimacy – Chief Justice John Roberts, and conservatives Brett Kavanaugh and Amy Coney Barrett – are the same ones who now seem the most shell-shocked, and the least keen to set off any new bombs in the abortion war they started. They were part of the majority who opted to kick the can down the road on the actual questions raised by this case. Those who have proven quite enthusiastic to use their seats on the court to remake American law to match their own religious far-right views – Samuel Alito, Clarence Thomas, Neil Gorsuch – were, on the other hand, clear even in this opinion that they wanted the court to decide this case, and to let Idaho bar doctors from helping even seriously ill pregnant women.

This does not bode particularly well for future abortion cases. The anti-abortion movement is gunning for the most extreme laws possible, including a federal abortion ban. The Fifth Circuit in particular has become a bastion of radical conservatism, and will undoubtedly clash again and again with circuit could decisions in less-extreme parts of the United States. The questions this court has refused to fully address – federal protections for pregnant women in medical distress, the legality of the abortion pill – may very well be back before them, along with many others raised by the Court’s decision to overturn Roe: the legality or accessibility of IVF, contraception, marriage equality, and a litany of others that millions of Americans have taken for granted.

The question before the Supreme Court was not a difficult one: Do pregnant women deserve the same medical treatment to save their lives and preserve their health as everyone else? The fact that this court wouldn’t answer may not be the worst-case scenario, but it’s also not any sort of win.

xx Jill