Why the Leaked SCOTUS Ruling Isn't a Victory
The Court will allow emergency abortions, but it's not a win
Well this is unexpected! The Supreme Court accidentally released their decision in Moyle v. United States, and it appears that they are poised to allow emergency abortions in Idaho.
That doesn’t mean this is a win. If the draft ruling obtained by Bloomberg stays the same, the justices will dismiss the case as “improvidently granted”—meaning the Court shouldn’t have accepted the case to begin with. The ruling would reinstate a lower court’s decision to allow Idaho doctors to perform life-saving and stabilizing abortions, and is not a decision on the merits of the case.
In that way, it’s similar to the SCOTUS decision on mifepristone: while it may seem positive at first glance, all the ruling does is kick the issue down the road. It’s a way to ensure that the Court doesn’t release an unpopular anti-abortion opinion that would hurt Republicans before November.
As Justice Ketanji Brown Jackson wrote, the ruling “is not a victory for pregnant patients in Idaho.”
Let’s back up a minute for those who need a refresher on the case and what EMTALA is. (For those who don’t, you can skip ahead to EMTALA’s Significance or the Ruling Details.) For a look at the draft ruling, click here.
EMTALA Refresher
The Emergency Medical Treatment and Labor Act (EMTALA) is the federal law that requires hospital emergency rooms to provide patients with life-saving and stabilizing care—including abortions.
After Roe was overturned and an Idaho abortion ban went into effect, the Biden administration sued the state, (correctly) pointing out that the law prevents doctors from adhering to EMTALA. The American Medical Association agreed, saying that Idaho’s law “undermines core medical ethics.”
The proof was overwhelming: During oral arguments, we heard about women being airlifted out of Idaho for emergency care, OBGYNs advising patients to get extra life insurance or coverage for Life Flights out-of-state, and doctors fleeing Idaho en masse, unable to give their patients the standard of care. The most recent data shows that the state has lost about a quarter of its OBGYNs and half of its maternal fetal medicine specialists. That means maternity ward closures, growing maternal health deserts, and, I imagine we’ll see soon, increased maternal deaths.
Idaho, of course, insists that the state’s abortion ban doesn’t conflict with EMTALA, arguing that the federal law requires them to stabilize both women and their “unborn child.” In response to all the evidence of harm being done to Idaho women, state Attorney General Raúl Labrador accused doctors of lying about airlifting patients out of the state for abortion care, claiming that the hospitals and doctors were just trying to make a “political statement.”1
EMTALA’s Significance
There’s no overstating how important EMTALA is, and what the consequences of an eventual ruling on the merits will mean. It won’t just impact what happens in hospital emergency rooms, but will have broad ripple effects on conscience laws, ‘fetal personhood’—even elections. Again, it’s clear to me why SCOTUS kicked the issue back to a lower court: it delays a final ruling and voter outrage that could hurt Republicans.
That’s because the medical implications of this case are profound. As ACLU Reproductive Freedom Project deputy director Alexa Kolbi-Molinas told Salon in April, “this case could radically change how emergency medical care is practiced in this country and could make pregnant people second-class citizens in America's emergency rooms.”
That’s what has been so horrible about watching this case, and what makes it so dangerous for Republicans. For women, this case isn’t just political and legal, but downright existential. Moira Donegan put it best at The Guardian:
“What was really at stake was the status of American women, who now have to beg before the courts not to face legally enforced medical negligence that will kill and maim them.”
That’s not hyperbole. Because while the anti-abortion movement spouts rhetoric about treating women and fetuses “equally”—as does Justice Samuel Alito in today’s leaked document—consider what that really means in practice. A 6-week embryo would warrant as much emergency treatment as you do.
We don’t need to wonder what the reality of that looks like. We’re seeing it in anti-abortion states across the country: Women forced to go septic before getting care, patients undergoing emergency hysterectomies and losing fallopian tubes, women told to wait in hospital parking lots until they stroke out.
How is that ‘pro-life’? What’s ‘family-friendly’ about rolling back medical care to the middle ages and allowing women to die of preventable infections?
It’s like I wrote in January, after the 5th Circuit Court of Appeals ruled that Texas doesn’t have to adhere to EMTALA: of course they want us dead. Those judges wrote that EMTALA, a law meant to protect a person’s life in an emergency situation, “does not provide an unqualified right for the pregnant mother to abort her child.” In other words: How dare we expect to live.
And that’s the thing: These are people who think it’s women’s job to die for their pregnancies.Those of us with the nerve to want to live, seeking out emergency abortions, aren’t desperate patients or people in need of care. We’re just bad moms.
The importance of EMTALA and this case also reach far beyond pregnant people. Here’s what George Washington University professor Sara Rosenbaum told the Texas Tribune in April:
“Now you've opened the door to excise any disfavored condition. What if, ‘We're going to prohibit our hospitals from providing emergency care unless someone’s dying from a drug overdose, because we think that by offering emergency care, we're encouraging people.’ Or hospitals are now barred from treating populations with HIV unless they're dying. There's no endpoint to this.”
Indeed, think about what life looked like before EMTALA was enacted in 1986. Then, it was fairly common to see uninsured patients dumped in front of public hospitals‚ refused treatment by private institutions concerned about their ability to pay.
With EMTALA, the federal government intervened to create safety nets for patients facing medical emergencies, regardless of their identity or insurance status. Inherent to the law is the idea that this country has a duty to protect patients’ lives inside emergency rooms.
Abortion bans destroy that principle.
Ruling Details
While today’s leaked draft ruling doesn’t give us a decision on the merits, there’s a whole lot of important and telling language from the Justices. Justice Jackson, in particular, absolutely lays into her conservative colleagues (and the ban itself). She points to the crisis in Idaho—from patients denied care to those who had to be airlifted out of the state—writing that “this months-long catastrophe was completely unnecessary.”
“More to the point, “ she continues. “It directly violated federal law.” Justice Jackson also criticizes the Court for “shirk[ing] its duty” to provide an answer to what is obviously an urgent issue:
“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. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.”
And it’s true: We’ve already witnessed the nation’s highest court hear arguments about just how many organs would be acceptable for women to lose before states should be required to give us care. Now, we have to sit back and wait as the fate of our health and lives is perpetually on hold.
While Justice Jackson’s opinion will have you pumping your fist in the air, Justice Samuel Alito’s may very well prompt you to throw your laptop across the room. His contempt for women absolutely drips from the page. Alito writes that the Biden administration is mandating that hospitals “must perform abortions on request when the ‘health’ of a pregnant woman is in serious jeopardy.” So we have woman’s ‘health’ in scare quotes, and the notion of “abortions on request.” As if we’re ordering a fucking burger and not dying of blood loss.
Alito also writes that EMTALA does not require doctors to perform abortions, but that the federal law “unambiguously demands” doctors to treat women and their “unborn child” equally. (Going out of his way to make one of many nods to fetal personhood.)
He claims that the law mandates that hospitals “protect” fetuses “at every stage” that a woman is being treated—even writing that a transfer to another hospital can only be done if a physician “certifies” that the medical benefits outweigh increased risks to the fetus.
Then, in one of the most infuriating sections of opinion I’ve ever read, Alito goes on a tear mansplaining pregnancy complications like PROM (premature rupture of membranes) and what he says are the differences between threats to women’s health or their life. As you can imagine, his point is that these deadly complications aren’t as bad as we’re making them out to be.
Finally, Alito takes on mental health, giving the example of a woman in her 10th week of pregnancy who is seriously depressed. He says the Biden administration’s interpretation of EMTALA would allow her to have an abortion. It doesn’t, actually—but it should. And while Alito seems to think that this hypothetical shows how ‘undeserving’ women could get abortions, all it does really does is remind Americans that he wants suicidal women to be forced to carry pregnancies they don’t want.
What’s Next
The immediate result of this ruling—once it’s officially released—will mean that Idaho doctors and hospitals can provide emergency abortions. (Really, the bare minimum of care.) But without a final say on the issue, it also means that the 5th Circuit ruling allowing Texas to flout EMTALA will stand.
All of which is to say: this isn’t over. The issue will make its way back through the Courts and likely be decided substantively after November—once it won’t be a danger to Republicans running for office.
Until then, the dehumanization at the heart of this case remains. At the end of the day, this is about our lives being treated as political fodder, and our freedom being dismissed with the bang of a gavel. That hasn’t changed.
Thanks to AED researcher Grace Haley for contributing to todays report.
This is part of a broader conservative trend that I’ve been warning about since 2022: blaming doctors in order to shirk responsibility for the serious harm bans are causing.
Both of the abortion rulings are designed to revisit after the election, when the Christo-fascist majority feels certain they can rule the way they want to without it costing Republicans in November. And that's how every media outlet should be reporting both of these decisions. They aren't wins. They're cynical delays.
As someone who experienced previable PPROM at 17 weeks, I wanted to absolutely scream when I read Alito’s discussion of the condition in his dissent. He’s incredibly flippant and unscientific about something he has never experienced. When my water broke too early I googled everything I could find on the issue hoping for a shred of hope that something could be done. At 17 weeks there is truly no hope and my doctors confirmed that. If I remember correctly the fetal survival rate at the 17 week mark was listed at around 5% and the chance for maternal infection at 60% or so. Those are not good odds and not worth risking your life over. Previable PPROM is a moving target that depends on where you are in the pregnancy and how much fluid you lost (I lost all my fluid). Using stats from 24 weeks is *very* different from using stats from 17 weeks. Or 18 weeks, like what happened with Amanda Zurawski. Anyway, all of this to say, Alito is a misogynistic monster who has absolutely no idea what he is talking about. But I would like to end on the positive note of saying that Ketanji Brown Jackson is an effing National treasure. Her writing was empowering and I wish that the other liberal justices had backed it.