The American Supreme Court with a conservative majority on Thursday granted a respite to supporters of the right to abortion by reauthorizing it in the state of Idaho in cases of medical emergency, without satisfying them on the merits.
Democratic President Joe Biden, who has positioned himself as a champion of women’s rights against his Republican predecessor and opponent in the November election Donald Trump, welcomed a decision that restores access to voluntary termination of pregnancy (VTP) in hospitals in Idaho in cases of medical emergencies.
“No woman should be denied care, forced to wait until she is in danger of dying, or forced to flee her state just to get the care she needs,” but that is the consequence of the Supreme Court’s landmark ruling striking down the federal guarantee of abortion rights, he said in a statement.
With this decision of June 2022, the highest American court has given back to the States full latitude to legislate in this area. Since then, around twenty have banned abortion, whether carried out by medication or surgery, or have strictly regulated it.
Among them, rural and conservative Idaho (northwest) only allows rare exceptions, such as in cases of incest or imminent danger of death for the pregnant woman. Outside of this framework, anyone performing an abortion risks up to five years in prison.
“Bad calculation”
But in August 2022 a federal judge, seized by the Biden administration, partially blocked the application of this ban because it contradicted a federal law on medical emergencies.
The federal law, called EMTALA, requires hospitals affiliated with the government’s Medicare health insurance plan — which is the majority of them — to treat anyone with a medical emergency.
But in January, the Supreme Court stayed the lower court’s decision while it ruled on the merits, restoring Idaho’s abortion ban in full force.
After hearing arguments from both sides in April, a majority of the justices — three conservatives and two progressives — found that the Court had “improperly granted” the appeal, lifted the stay of the lower court’s decision, and sent the case back to the lower courts.
“The arguments of the State of Idaho on the EMTALA law do not justify and have never justified either an emergency appeal or our early entry of this litigation,” writes progressive judge Elena Kagan.
This decision “will therefore prevent Idaho from enforcing its ban on abortion when the termination of a pregnancy is necessary to prevent serious harm to a woman’s health,” she said.
Conservative Justice Amy Coney Barrett agrees, calling the court’s decision to take up the case at this stage “a miscalculation, because the positions of the parties are still evolving.”
“Clarity”
“We are relieved for the moment but not really euphoric,” reacted the president of the Center for Reproductive Rights, Nancy Northup, deploring that the Court did not rule on the merits and for the whole country.
“Pregnant women suffering from serious complications and the hospital staff who follow them need clarity now,” she added in a press release.
She echoed the disagreement expressed by Judge Ketanji Brown Jackson, who on Thursday morning read it solemnly in court. “Today’s decision is not a victory for pregnant patients in Idaho, it is a delay,” she said.
“This Court had a chance to bring clarity and certainty to this tragic situation, and we blew it. As long as we refuse to proclaim what the law requires, pregnant patients in Idaho, Texas, and elsewhere will pay the price,” she said.
For their part, the three most conservative judges, in a dissent written by one of them, Samuel Alito, indicate that they would have ruled against the Biden administration and are surprised that the Court is relinquishing jurisdiction over the case.
“Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized issue that this case constitutes,” he wrote.
