Supreme Court allows emergency abortions in Idaho but leaves big questions unresolved

The US Supreme Court ruling does little to end the legal turmoil and tees up a longer-term fight over the issue that has galvanised voters in the November poll.

Activists clash during a demonstration in front of the US Supreme Court on Monday. Picture: AFP

The Supreme Court officially announced Thursday (Friday AEDT) that it would allow emergency abortions in Idaho without deciding key issues in the case, closing an unusual episode in which a draft of the decision accidentally became public a day earlier.

Since the court overturned Roe v. Wade two years ago, ending federal protections for abortion, the inability of women in some states to access abortions in medical emergencies has emerged as a top issue, shifting public opinion on abortion rights and galvanising political opposition to bans on the procedure.

The Supreme Court’s non-decision, in which a majority voted to dismiss the case as “improvidently granted,” will do little to end that debate or provide clarity to doctors struggling with how to interpret lifesaving exceptions to abortion bans.

Abortion rights activists gathered in front of the US Supreme Court this week. Picture: AFP

Three different camps of three justices expressed a range of views on the case. In the end, the court voted 6-3 to ditch the case without a ruling.

By stepping back from the case, the justices reinstated a lower-court order allowing doctors broad discretion to perform abortions in Idaho in medical emergencies. The action won’t change anything for physicians nationwide.

The Supreme Court had two abortion cases on its docket this term. It ended up deciding nothing of substance in either of them. The other case involved a challenge to decisions by the Food and Drug Administration to expand access to the abortion pill mifepristone, which is used in the majority of abortions in the country. Earlier this month, the justices said the plaintiffs, anti-abortion medical associations and physicians, didn’t have standing to bring the suit.

The continued legal turmoil could affect races up and down the ballot in November. Abortion has been an important motivator for some voters over the last couple of years and Democrats are trying to persuade them that it remains salient. Republicans plan to focus attention on other issues, such as the economy and immigration, but have struggled to counter emotional stories of pregnant women denied abortions when faced with medical crises.

“Because Trump’s Supreme Court majority overturned Roe v. Wade, women are being turned away from emergency rooms and forced to the brink of death before receiving the care they need,” a senior adviser to President Joe Biden’s re-election campaign said Thursday.

A spokeswoman for former president Donald Trump’s presidential campaign said: “President Trump has long been consistent in supporting the rights of states to make decisions on abortion.”

The Supreme Court had taken up the Idaho case to decide whether the federal Emergency Medical Treatment and Labor Act requires doctors to perform abortions to stabilise a seriously ill patient, even when state abortion bans only allow the procedure if a patient’s life is in danger.

The Biden administration, which sued Idaho, had argued the act requires hospitals to provide an abortion to a woman at risk of long-term disabilities, including infertility or kidney damage. The state argued the federal law doesn’t mandate, or even mention, abortion.

The high court recently rejected an effort seeking to restrict access to the abortion pill mifepristone. Picture: AFP

More than a dozen states now have bans on most abortions. All of them have some type of exception if a woman’s life is in danger but a handful don’t allow one if her long-term health is at serious risk. Republicans and anti-abortion groups have said such laws balance the mother’s suffering against the needs of her unborn child.

Idaho Attorney General Raúl Labrador said he tells doctors around the state that they are empowered to use their good-faith judgment in difficult situations.

“I think they have been told incorrectly by some of these pro-abortion lawyers in the United States that they’re going to be prosecuted all the time and that is just not the case in any way,” Labrador said.

Though the Supreme Court ducked the issue for now, the justices will have to confront it again soon. A US appeals court in New Orleans ruled earlier this year that the federal emergency-care law doesn’t mandate abortion care and Texas should be allowed to enforce the full scope of its near-total abortion ban. The Justice Department has already filed an appeal with the Supreme Court.

In an embarrassment for the court, a copy of the Idaho decision was very briefly available on the court’s website Wednesday before being quickly removed. The court acknowledged the error.

Three justices in the court’s centre – Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – effectively controlled Thursday’s outcome, saying time had shown the court had taken up the case prematurely.

The court’s three liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – also voted to dismiss the case but said they believed federal law pre-empts state law in cases where a woman’s health is at risk.

The three most conservative justices – Samuel Alito, Clarence Thomas and Neil Gorsuch – said the court should have decided the case and ruled for Idaho.

– Catherine Lucey and Alex Leary contributed to this article.

– Dow Jones Newswires