Supreme Court rules to allow emergency exceptions to Idaho's abortion ban

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Supreme Court issues major ruling on abortion access

Fox News' Shannon Bream and Fox News contributors Andy McCarthy and Jonathan Turley joined 'America's Newsroom' to discuss what the opinion means as it pertains to emergency access to abortion.

The Supreme Court on Thursday ruled that doctors in Idaho must — at least for now — be allowed to provide emergency abortions despite the state's near-total ban, in order to comport with the federal law that requires emergency rooms to give "stabilizing treatments" to patients in critical condition. 

In an unsigned opinion, the Court held that writs of certiorari in two cases involving the law were "improvidently granted," and vacated stays the Court granted earlier this year. The matter will continue to be litigated on the merits in lower courts, and could end up back before the Supreme Court in the future.

On Wednesday, the court mistakenly posted a draft of the opinion on the court's website before it was taken down. Thursday's opinion appears very similar to the accidental draft, with the same outcome but without a few paragraphs from the earlier draft. 

The consolidated cases, Moyle v. U.S. and Idaho v. U.S., had national attention following the high court's 2022 ruling that overturned Roe v. Wade. 

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Abortion rights demonstrators protest outside the U.S. Supreme Court in Washington, D.C., on June 24, 2022. (Ting Shen/Bloomberg via Getty Images)

In a concurring opinion, Justice Amy Coney Barrett, joined by Chief Justice Roberts and Justice Brett Kavanagh, agreed with the highly unusual move by the Court "because the shape of these cases has substantially shifted" since the Court granted certiorari. 

However, Justice Samuel Alito, joined by Justice Clarence Thomas, called the Court's decision "baffling." 

"Recognizing the flaws in the Government’s theory and Idaho’s ‘strong’ likelihood of success, this Court stayed the preliminary injunction pending appeal on January 5. And, wisely or not, the Court also took the unusual step of granting certiorari before Idaho’s appeal was heard by the Ninth Circuit. Now the Court dismisses the writ and, what is worse, vacates the stay," Alito wrote. 

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"This about-face is baffling," he continued. "Nothing legally relevant has occurred since January 5. And the underlying issue in this case — whether EMTALA requires hospitals to perform abortions in some circumstances — is a straightforward question of statutory interpretation. It is squarely presented by the decision below, and it has been exhaustively briefed and argued."

"Altogether, we have more than 1,300 pages of briefing to assist us, and we heard nearly two hours of argument," he added.

"Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable," he said. 

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Supreme Court Justice Clarence Thomas, left, and Justice Samuel Alito attend a private ceremony for retired Supreme Court Justice Sandra Day O'Connor before public repose in the Great Hall at the Supreme Court in Washington, D.C., on Dec. 18, 2023. (Jacquelyn Martin-Pool/Getty Images)

Justice Ketanji Brown Jackson wrote separately, concurring with the Court's decision to lift the stay, but dissenting against its decision to dismiss the cases as improvidently granted. 

"This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme," Jackson wrote.

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Supreme Court Justice Ketanji Brown Jackson (Tom Williams/CQ-Roll Call, Inc via Getty Images)

Idaho’s newly enacted Defense of Life Act makes it a crime for any medical provider to perform an abortion with exceptions for rape, incest and life of the mother.  

The Justice Department argued that the state’s law does not go far enough to allow abortions in more medical emergency circumstances.

"The Supreme Court sent the case back to the 9th Circuit today after my office won significant concessions from the United States that Justice Barrett described as ‘important’ and ‘critical,'" Idaho Attorney General Raúl Labrador said in a statement. 

"Today, the court said that Idaho will be able to enforce its law to save lives in the vast majority of circumstances while the case proceeds. The Biden administration’s concession that EMTALA will rarely override Idaho’s law caused the Supreme Court to ask the 9th Circuit for review in light of the federal government’s change in position. Justice Barrett wrote, those concessions mean that Idaho’s Defense of Life Act ‘remains almost entirely intact.’ The 9th Circuit’s decision should be easy," he said. 

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The DOJ sued the state, saying that the federal Emergency Medical Treatment and Labor Act (EMTALA) requires health care providers to give "stabilizing treatment" — including abortions — for patients when needed to treat an emergency medical condition, even if doing so might conflict with a state's abortion restrictions.

The state had argued that "construing EMTALA as a federal abortion mandate raises grave questions under the major questions doctrine that affect both Congress and this Court." Proponents of the state's abortion restriction accused the Biden administration of "subverting states' rights," citing the Dobb's decision which allowed states to regulate abortion access.