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The Supreme Court’s new, nightmare abortion cases, explained

The Court blocked a lower court order enforcing a federal law that protects patients who require medically necessary abortions.

People at a rally outside the Supreme Court building carry signs that read “Keep abortion safe and legal” as well as “I am the pro-life generation.”
Abortion rights activists hold signs alongside anti-abortion activists participating in the “March for Life,” an annual event to mark the anniversary of the 1973 Supreme Court case Roe v. Wade, which legalized abortion in the US, outside the US Supreme Court in Washington, DC, January 18, 2019.
Saul Loeb/AFP/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

The Supreme Court handed down two significant orders on Friday evening. The first announces that the Court will hear a case asking whether former President Donald Trump is disqualified from running for president. The Court’s decision to hear this case was widely expected, and the biggest news in this order is that the Court plans to hear the case on an expedited basis, with oral arguments taking place on February 8.

The second order is more surprising and potentially almost as consequential: The Court temporarily blocked a lower court’s decision holding that patients who require an abortion to save their life or prevent catastrophic health consequences are entitled to such an abortion under federal law.

In the second order, the Court also agreed to hear a pair of cases asking whether federal law requires hospitals to perform medically necessary abortions. Those two cases are called Moyle v. United States and Idaho v. United States.

Both the Moyle and Idaho cases should be slam dunks in favor of abortion rights. A federal law known as the Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that receive Medicare funds — which is nearly all hospitals because Medicare pays for health care for the elderly — to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment, but the patient must receive the treatment.)

EMTALA does not specifically mention abortions, but the law is written expansively and applies a blanket rule. When a patient arrives at an emergency room with a medical emergency, the hospital must stabilize that patient. That means that, if an abortion is the medically appropriate treatment, the patient must receive an abortion.

This rule is triggered, moreover, not only when a patient has a life-threatening condition, but also when a patient has a condition that places their health “in serious jeopardy,” that threatens “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part.” So a patient must be offered abortion care if an abortion will save their life, but also if they need an abortion to prevent serious damage to their uterus or some other serious medical complication.

The Court’s decision to hear the Idaho and Moyle cases is not particularly surprising because the far-right United States Court of Appeals for the Fifth Circuit recently handed down a decision holding that EMTALA does not apply to abortions at all. That decision is riddled with errors; among other things, the Fifth Circuit didn’t even have the lawful authority to decide this case. But the Supreme Court often takes up legal questions that split lower courts, and the Fifth Circuit’s decision means that lower courts are divided on whether EMTALA means what it says.

Still, the Court’s decision to also suspend a lower court’s order holding that EMTALA does mean what it says and that it preempts an Idaho law that prohibits all abortions except when “necessary to prevent the death of the pregnant woman” is quite unexpected. The Court sat on these two cases for more than a month before blocking the lower court’s decision. And, again, the EMTALA statute is crystal clear that patients experiencing a medical emergency must receive “such treatment as may be required to stabilize the medical condition” — nothing in EMTALA suggests that this rule does not apply if the appropriate treatment is an abortion.

But this is the same Court that overruled Roe v. Wade, and five of the Court’s Republican appointees have shown an extraordinary willingness to bend the law to benefit anti-abortion litigants — even ruling that the state of Texas may immunize itself from federal litigation challenging its anti-abortion laws by using bounty hunters to enforce those laws.

So, while the Court’s order in the Idaho and Moyle cases isn’t a sure sign that these cases will end disastrously for women who will die if they don’t receive an abortion, it is still a terrible sign of what the future may bring for these patients. And, if nothing else, the Court’s decision to suspend the lower court’s decision holding that EMTALA applies to hospitals in Idaho endangers pregnant patients in that state — at least until the Court issues its final decision in these cases.

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