The Supreme Court retreated Thursday from ruling on Idaho’s near total ban on abortions, leaving in place a judge’s order that for now allows doctors to perform abortions when necessary in medical emergencies.
The justices in an unsigned order said they had “improvidently granted” Idaho’s appeal in its dispute with the Biden administration over emergency care.
A draft of the order was inadvertently posted on the court’s website on Wednesday.
Justices were sharply divided when they heard the Idaho case in April. Justice Amy Coney Barrett accused the state’s attorney of giving shifting answers on whether certain emergencies could justify an abortion.
The justices were unable to agree on a majority ruling.
On Thursday, the justices split four ways in explaining their views. Barrett, joined by Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, said the court made a “miscalculation” by intervening too soon. She said both sides have continued to change their positions on what the state and federal laws require when it comes to emergency abortions.
Justices Elena Kagan and Sonia Sotomayor said the court was right to step back and allow emergency abortions to resume. They noted that because of the strict ban, women have been airlifted out of Idaho to have abortions in other states.
Dissenting, Justice Samuel A. Alito Jr. said the Biden administration would say hospitals “must perform abortions on request when the ‘health’ of a pregnant woman is serious jeopardy.” That cannot be right, he said, because the law refers to protecting an “unborn child.” Justices Clarence Thomas and Neil M. Gorsuch agreed.
Dissenting alone, Justice Ketanji Brown Jackson said the court should have ruled for the administration and held hospitals must provide emergency abortions if needed to stabilize a patient. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she wrote.
In January, the court issued an order that allowed Idaho to temporarily enforce its law. That too was set aside on Thursday.
Idaho’s abortion ban is among the nation’s strictest. It permits abortions only when “necessary to prevent the death of the pregnant woman.” It makes no exception for emergencies or medical conditions which could endanger a patient’s health.
The Biden administration sued Idaho in 2022, arguing that the federal Emergency Medical Treatment and Labor Act requires hospitals to provide “necessary stabilizing treatment” to patients who arrived there. And in rare cases, U.S. health officials said, doctors may be required to perform abortion if a woman is suffering from a severe infection or uncontrolled bleeding.
Idaho’s state attorneys and state legislators sharply disagreed. They said the federal law has nothing to do with abortions.
But a federal judge in Idaho ruled for the administration and handed down a narrow order that permits abortions in certain medical emergencies. The 9th Circuit Court of Appeals refused to lift that order while it weighed the state’s appeal.
The case of Moyle vs. United States posed a clash between the federal law that requires hospitals to provide emergency care and the state’s authority to regulate doctors and the practice of medicine.
Arguing for the administration, Solicitor Gen. Elizabeth Prelogar said pregnant woman “can suffer dangerous conditions that require immediate medical treatment to prevent death or serious injury, including organ failure or loss of fertility. And in some tragic cases, the required stabilizing care—the only treatment that can save the woman’s life or prevent grave harm to her health—involves terminating the pregnancy.”
She said Idaho was among only six states that make no exceptions for protecting the health of a pregnant patient.
After Idaho’s law took effect, doctors reported that six women who needed an abortion because of medical complications were transported to hospitals outside the state.
Doctors in Idaho contended that the state’s law endangers patients, and they spoke out against it during the court battle.
In medical emergencies, “delay puts the patient’s life and health at risk. But the lack of clarity in the law is creating fear in our physicians,” Dr. Jim Souza, chief physician executive for St. Luke’s Health System in Boise, said in an earlier interview.
He said doctors in emergency rooms often see pregnant women whose water has broken, or who have a severe infection or are bleeding badly. An abortion may be called for in such a situation, but doctors know they could be subject to criminal prosecution if they act too soon, he said.
This story originally appeared in Los Angeles Times.
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