Abortion Protections Won't Work Without the Supreme Court
Yesterday, a decision was posted online to the US Supreme Court website before it was officially released by the Court. This is only the second time in history that this kind of mistake has been made. The first leak also concerned the issue of abortion, and it happened two years ago when an early draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization — the case overruling Roe v. Wade — was leaked to the press.
While the mistake made on Wednesday could be considered a fairly simple clerical error, the opinion in Moyle v. United States was “briefly posted on the court’s website” before being taken down. A Supreme Court spokesperson said that “the court’s publications unit inadvertently and briefly uploaded a document to the court’s website,” and that the final decision will be “issued in due course.” (See image and link below)
The full ruling was in issued publicly this morning and while it might seem like a small victory for abortion rights in the state of Idaho, the ramifications of the Court’s unwillingness to address the underlying legal issue at hand are problematic. It is only a matter of time before another state law will encroach on the federal protections embedded within the Emergency Medical Treatment and Labor Act (EMTALA), which was enacted in 1986 to prevent hospitals from denying care for uninsured patients.
The real issue presented in Moyle is this: whether states could ignore a federal law, which requires hospitals to provide emergency care to patients, in light of the near-total abortion ban enacted by the Idaho State Legislature. Instead of answering that question — which relies upon the Supremacy Clause premise that when a federal law is in direct conflict with a state law, the federal law should always prevail— the Justices dismissed the appeal as “improvidently granted,” meaning the Court should not have accepted the case in the first place and the appeals court ruling stands.
The result is an empty win for abortion protectionists, because the stay imposed by the lower court, enjoining the Idaho ban from enforcement in emergency situations, will remain in place. The Court has however, refused to address the real issue at hand, which would put a stop to many of the laws imposed by conservative states, that limit abortion protection rights in many scenarios.
In her dissent, Justice Ketanji Brown Jackson explained the ramifications of the Court’s refusal to make a binding decision at this point and the ramifications of this failure for women saying:
“In 1986, Congress passed the Emergency Medical Treat- ment and Labor Act (EMTALA), which requires hospitals to provide stabilizing treatment when patients present with emergency medical conditions. See 42 U. S. C. §1395dd. Sometimes, an abortion is the only way to stabilize a pa- tient and, therefore, comply with EMTALA. But Idaho law prohibits abortions unless the treating physician believes that the abortion is “necessary to prevent the [patient’s] death.” Idaho Code Ann. §18–622(2)(a)(i) (Supp. 2023).
Recognizing the clear conflict between EMTALA and Idaho law, a Federal District Judge issued an injunction that had the effect of ensuring that Idaho physicians would be able to provide the abortion care EMTALA requires. Five months ago, this Court stayed that injunction. As a legal matter, this Court’s stay meant that unless a doctor could actually say that the abortion was necessary to pre- vent a patient’s death, that doctor could no longer provide abortion care that she viewed as reasonably necessary to keep a patient from losing her uterus, going into organ fail- ure, or avoiding any number of other serious health risks. Compare §18–622(a)(i) with 42 U. S. C. §1395dd(e)(1)(A). As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho.
This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme. (See Art. VI, cl. 2.) As JUSTICE KAGAN explains, EMTALA plainly re- quires doctors to provide medically necessary stabilizing abortions in limited situations. See ante, at 4–6 (concurring opinion). To the extent that Idaho law conflicts with EMTALA, the State’s law must give way. I join in JUSTICE KAGAN’s statutory analysis, see ibid., and I concur in the Court’s per curiam decision to lift its stay, which should not have been entered in the first place. I dissent in part because, in my view, the Court is wrong to dismiss these cases as improvidently granted.”
Justice Jackson’s words are further reinforced by the fact that the voters in certain conservative states, where the most restrictive abortion bans have been enacted since the Dobbs Decision, have not been able to protect abortion access on the ballot due to the Republican control over state and local governments, predominantly in the South. When abortion protections are on a state or local ballot, those protections overwhelmingly succeed in accordance with a majority of Americans believing that abortion should be a legal right.
Currently, there are 25 states which ban citizen initiatives or constitutional amendments on a statewide ballot, a way in which the electorate has democratically circumvented a legislative majority within a state. Voters in seven states, including conservative states like Kentucky, Montana and Ohio, have opted to protect abortion rights or voted against restricting abortion rights during a statewide vote. When the issue of abortion is separated out from the other issues embedded within the Republican Party in conservative states, abortion rights resoundingly win every time.
But the rights of women in red states, led by Republican majorities, are being circumvented by the Republican Party with the assistance of the highest court in the land. Through the inaction of the US Supreme Court today, another arm of the federal government, which should act as a check on the legislative power of all states, has failed to protect certain US citizens from the Republican work-around that denies them proper access to health care. Without some authority addressing the issue of federal supremacy with regard to restrictive abortion laws, people in the states which forbid ballot initiatives will always be at risk.
This is, and will remain a fundamental road block to the functioning of our American Democracy, which should always leave other avenues for the electorate to self-correct majority rule and preserve the sacred right of citizens to enact their own laws. It’s time for the US Supreme Court to realize that in order to stay viable with the public it is meant to serve, it needs to move and breathe with its own citizens and exist as another option for surpassing tyranny. Abortion rights activists might win on every ballot, and even win big on the ballot in November, but if we can’t get the Supreme Court to properly protect the rights enumerated in the US Constitution, the rights of women to control their own autonomy will be continue to be thwarted at every turn.
Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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I'm amazed every single time about her writing and publishing true facts, that matters to you, to all of us! Enjoi!
The Supreme Mullah Court strikes again. Every wrongheaded and ideological decision they make brings them closer to irrelevancy. When the highest court in the land punts on whether state laws trump federal law, a no-brainer decision as rightly pointed out, then we're in serious trouble. The supremes are a bunch of hucksters and con-artists, corrupt beyond redemption. We need a president willing to call them out for their bullshit, FDR style. Until then continue to watch the erosion of rights from the self-appointed Kings of America. What a farce.