US Supreme Court set to overrule state on abortion

A draft version of the decision was accidentally posted on its website on Wednesday, then quickly removed.

Anti-abortion activists outside the Supreme Court in Washington. Picture: AFP

The US Supreme Court appears ready to let emergency abortions be performed in Idaho, according to a draft version of a decision the court accidentally posted on its website on Wednesday, then quickly removed.

The draft opinion dismisses the state’s appeal of a lower court order permitting emergency abortions under federal law governing hospitals that accept Medicare, according to Bloomberg News, which discovered the posting.

Idaho state law forbids the procedure except when necessary to save a woman’s life. The Biden administration, which sued the state, argued that federal law is more permissive, authorising emergency abortions when needed to stabilise a patient in a health crisis.

The Supreme Court issued a statement saying no decision was final. The opinion “has not been released”, it said.

“The court’s Publications Unit inadvertently and briefly uploaded a document to the court’s website. The court’s opinion in these cases will be issued in due course.”

According to the document, the court voted 6-3 to dismiss the case, Bloomberg said. Judges Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

But the new ruling does not tackle the central issue raised by the case – namely, whether Idaho’s near-total ban on abortion conflicts with a federal law requiring hospitals to stabilise patients needing emergency care. A decision on the merits could have potentially sweeping national consequences.

Rather, the Supreme Court said the appeals are being dismissed as “improvidently granted”, and the case should run its course in lower courts.

The Idaho case is the second major abortion dispute the court has heard since it overruled Roe v Wade in 2022, rescinding women’s constitutional right to end unwanted pregnancies before fetal viability, which it recognised in 1973. That decision, Dobbs v Jackson Women’s Health Organisation, also was disclosed prematurely, when a draft version was leaked to Politico.

Earlier in June, the court unanimously rejected a suit filed by anti-abortion doctors seeking to limit access nationwide to the mifepristone abortion pill. The court said the activists had no legal standing to file the suit because they don’t prescribe or use the drug and aren’t harmed by Food and Drug Administration regulations specifying how other physicians can prescribe it.

The Idaho case comes amid stories of women with serious pregnancy complications being sent in ambulances to hospitals in nearby states or denied care while their conditions deteriorate. States with abortion bans say their laws contain adequate exceptions for situations in which pregnant women are facing life-threatening emergencies. The Biden administration has taken a different view.

More than a dozen states ban abortion in most cases but all make some type of exemption for emergencies that threaten the life of the mother. A handful, however, don’t allow abortion if a woman is at risk of major impairment such as diminished kidney function or a uterus that is so badly scarred she can no longer get pregnant.

The federal emergency care law, passed by congress in 1986, was an effort to prevent hospitals dumping or denying patients for economic reasons. It requires hospitals that participate in Medicare, the health insurance program for seniors and younger people who are disabled, to provide emergency care to anyone regardless of their ability to pay.

The Biden administration, backed by abortion rights groups, argued the law’s terms meant hospitals should be allowed to provide abortions in emergency situations.

Lawyers for Idaho said their state’s Supreme Court had already clarified that a woman need not be minutes or hours from death before doctors can intervene. In situations where a woman’s long-term health is at risk, the state must balance her rights against those of her unborn child, they said.

The Wall Street Journal