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06/27/2024 | News release | Distributed by Public on 06/28/2024 01:14

Supreme Court Allows Emergency Abortions in Idaho—for Now

Supreme Court Allows Emergency Abortions in Idaho-for Now

"This decision just kicks the can down the road," says BU LAW professor Nicole Huberfeld

Thursday's Supreme Court opinion cleared the way for emergency abortions in Idaho while litigation continues in the lower courts. Photo by Jim Watson/Getty images

Business & Law

Supreme Court Allows Emergency Abortions in Idaho-for Now

"This decision just kicks the can down the road," says BU LAW Professor Nicole Huberfeld

June 27, 2024
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The Supreme Court on Thursday threw out a pair of cases barring emergency abortions in Idaho, clearing the way-for now-for pregnant people in the state to get abortions in cases when their health is at stake.

The brief, unsigned opinion, issued "per curiam" or "by the court," declared that the order to send the cases from the lower courts to the Supreme Court had been "improvidently granted." The high court reinstated a lower-court decision that blocked a near-total abortion ban in Idaho, allowing healthcare providers at the state's hospitals to perform emergency abortions if needed to protect the pregnant person's health.

"This is dodging a bullet," says Nicole Huberfeld, the Edward R. Utley Professor of Health Law, Bioethics & Human Rights at the BU School of Public Health and a School of Law professor of law. "This decision just kicks the can down the road."

The opinion didn't come as a total surprise: a version of it was accidentally posted to the Supreme Court's website the day before and reported by Bloomberg and then picked up by other media outlets. A court spokeswoman acknowledged on Wednesday that the publications unit had "inadvertently and briefly uploaded a document" and said a ruling in the case would appear in due time.

At the heart of the joined cases, Moyle v. United States and Idaho v. United States, is a conflict between federal law and state law. A federal law, the Emergency Medical Treatment and Labor Act (EMTALA) requires that Medicare-funded hospitals provide essential care to patients experiencing medical emergencies. Meanwhile, Idaho passed its own law that prohibits abortions unless necessary to prevent a pregnant person's death, making no exception for abortions that are necessary to prevent grave harm to the person's health, such as (in some instances) kidney failure or future infertility.

The question before the court, then, was fairly straightforward: in cases where a pregnant person is facing serious health complications-but not necessarily death-does the federal law supersede the state law? Or the other way around?

And really, Huberfeld says, this isn't really a debate at all.

"This isn't actually a hard, substantive question. Federal law preempts state law when there's a conflict. And here we have a federal law that says hospitals need to provide care in medical emergencies. Because if you take funding from Medicare, these are the rules of the game," she says.

"The short version, just to be clear," Huberfeld adds, "is that the Supreme Court didn't actually decide whether states can stop hospitals from providing certain kinds of care in medical emergencies."

Thursday's decision marks the second time Supreme Court justices have sidestepped the merits of an abortion case this term, and made a procedural ruling instead. Earlier this month, the court rejected a bid by a group of antiabortion doctors to unravel the US Food and Drug Administration's approval of a widely used abortion pill, mifepristone, by ruling that the group didn't have the legal standing to bring the case in the first place.

Signaling frustration, Justice Ketanji Brown Jackson (Hon.'23) wrote in a dissenting opinion on Thursday, "So, to be clear: Today's decision is not a victory for pregnant patients in Idaho. It is delay. 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."

Echoing Jackson's final point, the upshot of all this litigation, with its lack of clarity "is confusion," Huberfeld says.

"It's confusion for healthcare providers, it's confusion for patients. Most people are risk-averse. And they will either not seek care that they may need because they're afraid, or healthcare providers won't provide care that they think that they ought to, based on their training, because they are afraid of committing a felony, or losing their license to practice medicine."

And so while the two abortion cases before the high court this term largely resulted in maintaining the status quo-the abortion pill mifepristone is still legally available, and doctors in Idaho can still perform emergency abortions to preserve the pregnant person's health-the "expressive value" of these decisions, as Huberfeld describes it, is to muddy the waters for people seeking abortions and people providing them.

"It isn't just about what the law says, but how the public absorbs what this very confusing information means," she says.

The Supreme Court released two other significant decisions on Thursday.

The justices ruled that members of the Sackler family-former owners of Purdue Pharma-cannot be shielded from lawsuits over their role in the opioid crisis as part of a bankruptcy settlement that would channel billions of dollars to victims and their families. The New York Timesreports that the decision "jeopardizes a carefully negotiated settlement Purdue and the Sacklers had reached in which members of the family promised to give up to $6 billion to states, local governments, tribes and individuals to address a devastating public health crisis."

Ruling in another case, justices put on hold a Biden administration initiative to improve public health by reducing smog-forming pollution from power plants and factories that blows across state lines.

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  • Molly Callahan

    Senior Writer

    Molly Callahan began her career at a small, family-owned newspaper where the newsroom housed computers that used floppy disks. Since then, her work has been picked up by the Associated Press and recognized by the Connecticut chapter of the Society of Professional Journalists. In 2016, she moved into a communications role at Northeastern University as part of its News@Northeastern reporting team. When she's not writing, Molly can be found rock climbing, biking around the city, or hanging out with her fiancée, Morgan, and their cat, Junie B. Jones. Profile

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