The U.S. Supreme Court’s limited decision in the Idaho abortion case late last week demonstrates that most justices want to limit the court’s exposure to criticism before the presidential election in November, a pro-life legal scholar told the Register.

“Part of it is, I think they’re very aware that this is an election year and that the Supreme Court has become a political issue. The majority wants them to lay low to defuse the cases that have political ramifications until after the election year,” said Dwight Duncan, a professor at the University of Massachusetts School of Law who has represented pro-life clients.

If that weren’t the case, Duncan said, the court would have decided whether existing federal law requires that Idaho allow hospitals to perform abortions in cases where the health of the mother is threatened but her life isn’t. (That’s what justices on opposing sides — Ketanji Brown Jackson and Samuel Alito — urged the court to do.)

“There’s no real reason not to decide the case on the merits. The reasons given for kicking it down the road seem a little bit contrived,” Duncan told the Register.

Instead, the court decided to let the case play out at the U.S. district-court level in Idaho, even though it’s likely the case will make it back to the U.S. Supreme Court, since a split in the lower federal appeals courts may be looming.

 

Temporary Loss for Pro-Lifers?

On paper, the court’s decision in the Idaho case, known as Moyle v. United States, 

is a loss for the pro-life side — by a 6-3 vote, the Supreme Court reinstated a lower federal court’s stay on a portion of Idaho’s abortion ban, meaning that hospitals in Idaho are now supposed to perform abortions in the tiny fraction of cases where a pregnant woman has a condition that threatens her future fertility but doesn’t threaten her life.

The one-sentence court order spawned two concurring opinions, one dissenting opinion, and one opinion that concurred in part and dissented in part. On the main point — reimplementing a lower court’s stay of a portion of Idaho’s abortion ban — liberal justices Elana Kagan, Sonia Sotomayor and Ketanji Brown Jackson were joined by conservatives Amy Coney Barrett and Brett Kavanaugh and by swing vote John Roberts, the chief justice. Dissenting were conservatives Samuel Alito, Clarence Thomas and Neil Gorsuch.

President Joe Biden, who supports widespread access to abortion, declared victory after the court issued its decision Thursday, while saying he “will continue to fight to restore the protections of Roe v. Wade in federal law, for all women in every state in the country.”

“My Administration is committed to defending reproductive freedom and maintains our long-standing position that women have the right to access the emergency medical care they need,” Biden said in a written statement.

Pro-lifers noted to the Register that the ruling is likely temporary and that it leaves most of Idaho’s abortion ban intact.

“The Supreme Court did not strike the pro-life Idaho law; rather, it said the case was premature and needed more resolution through the lower courts, so the battle continues,” said Carol Tobias, president of the National Right to Life Committee, by text.

She said the Biden administration is using scare tactics to try to paint Idaho’s abortion ban as unreasonable even though it isn’t.

“The Biden administration has done its best to scare women into thinking they will not get the emergency care they need, but the Idaho law, like laws in all 50 states, explicitly allows miscarriage care, [care for] ectopic pregnancies, and treatment in a medical emergency,” Tobias said.

Another pro-life group, Susan B. Anthony Pro-Life America, called the case “Biden’s PR stunt.”

Katie Daniel, state policy director for the organization, in a written statement called the Supreme Court’s decision “a setback,” but added that “Idaho’s pro-life law is consistent with EMTALA” and that “we are confident Idaho will eventually prevail on the merits of this case.”

 

What Is EMTALA?

Congress passed the federal Emergency Medical Treatment & Labor Act in 1986 to try to stop hospitals from diverting patients elsewhere because of inability to pay, by forcing hospitals that take federal funding through Medicare — meaning, nearly all of them — to provide basic treatment to everyone who shows up. That includes medical screening and what the law calls “necessary stabilizing treatment for emergency medical conditions and labor.”

The law doesn’t mention abortion — and, in fact, stipulates that the term “emergency medical condition” includes a refusal of care that places the health of an “unborn child” in serious jeopardy. But during the past two years, the Biden administration has said it includes abortion in certain situations.

In July 2022, two and a half weeks after the U.S. Supreme Court overturned Roe v. Wade and sent abortion law back to legislatures, state referendums and state courts, the U.S. Department of Health and Human Services issued a memo stating that an emergency room doctor must perform an abortion if a woman needs it as “stabilizing treatment” to resolve “an emergency medical condition” — even if state law generally prohibits abortion.

While the Biden administration claimed it wasn’t making new policy, the action drew swift opposition from pro-life advocates.

Texas filed a federal lawsuit against the federal government in August 2022, and won a preliminary injunction against enforcement of the abortion memo, in a case known as Texas v. Becerra. In January 2024, the 5th Circuit Court of Appeals upheld the injunction, effectively stopping the Biden administration from forcing hospitals in Texas to provide abortions in emergency situations.

The Idaho case has gone differently. There, a U.S. district-court judge in August 2022 granted the Biden administration’s request for an injunction against a portion of Idaho’s law banning abortion, allowing abortions in hospitals in emergency situations. 

In September 2023, a three-judge panel of the 9th Circuit Court of Appeals lifted the stay, after finding that supporters of the Idaho abortion-ban law “made a strong showing that it would succeed on the merits.” But just 12 days later, a majority of the 11-judge 9th Circuit voted to rehear the case, suggesting that a majority might be inclined to side with the Biden administration in the dispute.

 

Catholic Bishops Concerned

Catholic bishops in the United States have expressed concern over the case, including how it may affect Catholic hospitals in the future.

The U.S. Department of Health and Human Services’ abortion memo, according to a friend-of-the-court brief filed in February by the U.S. Conference of Catholic Bishops and other Catholic organizations, is “invalid” because it fails to acknowledge the federal statute’s “command to provide treatment to an unborn child in a provider’s care.”

The bishops’ brief maintains that abortion “is never necessary to protect the life of a pregnant mother,” and it adds that claims that doctors in pro-life states are prevented from treating ectopic pregnancies, miscarriages and intrauterine infections are “blatantly absurd,” since pro-life laws in Idaho and elsewhere don’t prohibit such treatments.

It also argues that the Biden administration’s interpretation of federal law is dangerous because it “risks a regulatory domino effect” in which “many Catholic medical practitioners and Catholic health care entities … feel pressure to opt out of programs covered by EMTALA” to avoid losing medical licenses and drawing “crushing legal fines.”

In April, during oral argument before the Supreme Court, the Biden administration’s solicitor general, Elizabeth Prelogar, told the justices that what she called “conscience protections” in existing federal law would prevent individual doctors and hospitals from providing abortions if they object to abortion.

On Friday, Tyler Brooks, senior counsel of the Thomas More Society and co-author of the U.S. bishops’ friend-of-the-court brief, told the Register that the court missed a chance to right a wrong.

“Rather than correcting the Biden Administration’s erroneous reinterpretation of EMTALA, the decision from the Supreme Court is disappointing and threatens to create even greater confusion for Catholic medical providers regarding their duties under EMTALA,” Brooks said by email through a spokesman. “Nevertheless, the Supreme Court’s action is not the final word in the case, and we will continue to advocate for the rights of Catholic providers and the protection of unborn children.”

 

Fertility vs. Babies?

In her concurring opinion, Justice Elena Kagan, who supported Roe v. Wade before it was overturned, suggested the conflict between EMTALA and Idaho law banning most abortions comes down to “cases in which a continuing pregnancy does not put a woman’s life in danger, but still places her at risk of grave health consequences, including loss of fertility.”

“In that situation,” Kagan wrote, “federal law requires a hospital to offer abortion, whereas Idaho law prohibits that emergency care.”

Father Tadeusz Pacholczyk, senior ethicist at the National Catholic Bioethics Center, called Kagan’s reasoning “odd.”

He noted that women often give birth after being told that their fertility has been damaged beyond repair by a difficult first pregnancy, and he questioned whether predicted future fertility is worth the life of a baby already in the uterus.

“This encapsulates the selfish dimension of abortion, where the second human being involved in the pregnancy is largely treated as if they don’t exist, as if they are a mere means towards the ends of fulfilling the wishes and willfulness of the woman,” Father Pacholczyk told the Register by email. 

“Becoming a mother, which happens at the very split-second that a woman becomes pregnant, ” Father Pacholczyk said, “challenges every woman to a path of generosity and sacrifice, and the temptation to frame childbearing in terms of one’s own needs and desires can be very strong, especially in a society that has already grown accustomed to many decades of in utero violence.”