‘Not a Victory,’ But ‘a Delay’: With the Supreme Court’s EMTALA Ruling, U.S. Women Are Still at Risk

The Court refused to rule on the underlying question: Must state abortion bans provide an exemption when a woman’s health is at risk, not only her life? Instead it punted the issue to a more politically convenient time.

A “die-in” protest outside of the Supreme Court on April 24, 2024, before oral arguments in a case challenging a federal law that requires hospitals to perform an emergency abortion when needed to resolve a patient’s medical emergency. (Bill Clark / CQ-Roll Call, Inc via Getty Images)

In an opinion published Thursday, the U.S. Supreme Court dismissed its final major abortion case of the term. The opinion was a narrow ruling that Idaho cannot prohibit doctors from performing emergency abortions for women with life-threatening pregnancy complications while the case is appealed in the U.S. Court of Appeals for the Ninth Circuit.

The ruling had the justices split 6 to 3. The majority agreed to dismiss the case as “improvidently granted”—meaning that the Court should never have accepted the case for review. As is customary in such cases, the majority did not explain its reasoning in its one-sentence decision.

The Court’s improvidence has endangered women’s lives. “In the six months the Supreme Court deliberated on this case, at least six pregnant patients in Idaho had to be airlifted to out-of-state hospitals for emergency care—according to just one hospital’s reports,” said Indivisible’s chief campaigns officer Sarah Dohl. “Countless other pregnant patients, terrified and in crisis, were denied necessary care due to Idaho’s extreme law.”

The SCOTUS case is a consolidation of two cases regarding Idaho’s near-total ban on abortion: one originally filed by Biden, Idaho v. United States, which ruled the federal Emergency Medical Treatment and Labor Act (EMTALA) preempted the state-level ban; and another brought by Idaho legislators, Moyle v. United States, challenging a Ninth Circuit decision to allow a district court’s decision to prohibit the ban from going into effect while the case is on appeal. 

  • Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented from the dismissal, and Justice Ketanji Brown Jackson dissented to the dismissal but joined the majority in allowing emergency medical care for pregnant women in Idaho. 
  • Justice Amy Coney Barrett wrote a concurrence, joined by Justices John Roberts and Brett Kavanaugh, saying that “the shape of the case had substantially shifted,” including a Biden administration clarification about the reach of EMTALA and a change to Idaho law itself.
  • In another concurring opinion joined in full by Justice Sonia Sotomayor and in part by Justice Jackson, Justice Elena Kagan said the Court’s decision “will prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman’s health.”
  • Justice Jackson also filed a separate opinion saying she would not have dismissed the case. 

It may be that the decision was a compromise between the three liberals and the three conservatives.

“The three liberal justices stand for protecting pregnant patients. They valued their lives and health,” said Dohl. “The other six justices chose to ignore their plight. Three of them even wanted to uphold Idaho’s right to deny care, paving the way for other states to enact similarly extreme laws, effectively overruling the federal emergency room law that has protected patients for 38 years.”

The ruling remanded the case back to the Ninth Circuit Court of Appeals for a decision on the merits. 

Make no mistake: The Supreme Court ruling in Moyle and Idaho is barely a win for abortion supporters. The Court refused to rule on the underlying issue: Must state abortion bans provide an exemption when a woman’s health is at risk, not only her life? 

Instead the Court punted the issue to a later time—perhaps wary of the approaching election and Thursday’s debate between President Biden and candidate Trump.

“While we are temporarily relieved for Idahoans that enforcement of the law is delayed, kicking the can down the road just means giving right-wing judges another chance to rule in favor of the anti-abortion extremists – or delay the outcome till after election day entirely,” said Dohl.

This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.

Justice Jackson
A group of doctors join abortion rights supporters at a rally outside the Supreme Court on April 24, 2024, during oral arguments on Moyle v. United States and Idaho v. United States. (Andrew Harnik / Getty Images)

Jessica Valenti of the Abortion, Every Day newsletter criticized the weak ruling as “a way to ensure that the Court doesn’t release an unpopular anti-abortion opinion that would hurt Republicans before November”—much like the Court’s recent ruling in Alliance for Hippocratic Medicine v. FDA, which the Court also avoided by declining to rule on the merits. 

Justice Jackson made this point clear in her partial dissent: “Today’s decision is not a victory for pregnant patients in Idaho. It is a delay. While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.”

Alito, joined by Thomas and Gorsuch, disagreed, calling the case “easy but emotional and highly politicized” in their dissent.

The Supreme Court also refused to protect women experiencing pregnancy complications in any other state with a severe ban similar to Idaho. At least six states that ban abortion do not have exceptions for the health of pregnant women. The Supreme Court ruling would only apply to Idaho, while the case is being appealed.

Even for pregnant patients in Idaho, the win is limited: It does nothing to help most women in Idaho access abortion care. Nor does it help women pregnant with fetuses that have fetal anomalies. It blocks the state of Idaho from enforcing its near-total ban only when a patient requires “necessary stabilizing treatment” for an emergency medical condition that puts a patient’s health in serious jeopardy, including “serious impairment of bodily functions or serious dysfunction of any bodily organ or part.” 

Whether a patient is experiencing a medical emergency is still a matter of some discretion; Idaho doctors could still face prosecution for making the wrong judgment call—so they may yet be deterred from providing abortion care in Idaho despite the favorable ruling.

The fact that this outcome is being spun by some media outlets as a victory is a testament to how much ground women have lost in America in just the last two years. This decision perpetuates the legal uncertainty and reign of terror created by anti-abortion extremists.

“As written, the U.S. Supreme Court had the opportunity to be clear that the federal EMTALA law protects the right to abortion in an emergency in every state—regardless of a state’s abortion ban—and they chose not to,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America. “We never should have been here at all. Based on this draft, this litigation will continue in the lower courts. Access is still under threat across the country, but for now, this means that patients in Idaho will be able to get the care they need, according to federal law—after seven months of pregnant people suffering in an unnecessary and possibly deadly legal limbo.”

The Heritage Foundation’s Project 2025 policy agenda for the next Republican president also pledges to reverse the Biden administration’s interpretation of EMTALA and allow states with extreme abortion bans to prohibit emergency medical care for women with pregnancy complications.

The U.S. Supreme Court had the opportunity to be clear that the federal EMTALA law protects the right to abortion in an emergency in every state—regardless of a state’s abortion ban—and they chose not to.

Alexis McGill Johnson

Timeline of Idaho v. United States and Moyle v. United States

  • July 11, 2022: In an attempt to protect abortion access after the Dobbs decision, the Biden administration issued a presidential memo that EMTALA applies in emergency medical cases where abortion is necessary to stabilize a patient.

  • Aug. 2, 2022: The DOJ filed a complaint against the state of Idaho arguing that the state’s near-total abortion ban—which was passed in 2020 and set to go into effect in August 2022, after Dobbs—was in direct conflict with EMTALA. 

  • Aug. 24, 2022: The U.S. District Court for the District of Idaho sided with the DOJ and enjoined the law.

  • Nov. 13, 2023: The U.S. Court of Appeals for the Ninth Circuit declined to put a hold on the District Court of Idaho’s decision to allow emergency medical care for pregnant women.

  • Nov. 20, 2023: Idaho appealed to the U.S. Supreme Court. Simultaneously, Idaho state Rep. Mike Moyle (R) submitted an application for a stay to Justice Kagan. Parties to both suits were represented by the extremist Christian organization Alliance Defending Freedom.

  • Jan. 5, 2024: The U.S. Supreme Court agreed to hear the case on the issue of “whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho’s Defense of Life Act.” They also, inexplicably, allowed the Idaho ban to take effect in the meantime, immediately putting pregnant patients in the state at risk.

  • April 24, 2024: The U.S. Supreme Court heard oral arguments—during which, the state of Idaho argued it is not obligated under EMTALA to provide abortions needed to stabilize an “emergency medical condition” because its Defense of Life Act only permits pregnancy terminations when “necessary to prevent the death of a pregnant woman.” (Prior to the Court’s decision in Dobbs v. Jackson, state abortion laws were constitutionally required to contain both a health and life exception. However, in the wake of Dobbs, a handful of ban states, including Idaho, no longer permit abortions needed to protect a pregnant woman’s health.)

  • June 26, 2024: An opinion dismissing the case as “improvidently granted”—in other words, saying that the Court should never have granted the case—was temporarily posted on the Supreme Court website. This means SCOTUS plans to not answer the question they agreed to decide: whether EMTALA preempts Idaho’s abortion ban. The Court instead will allow the district court’s injunction against the Idaho law to go into effect while the Ninth Circuit Court of Appeals in San Francisco considers the merits of the case. 

  • June 27, 2024: The official opinion was released.

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About , , , and

Kendall Turner is a writer and reformed lawyer. She previously clerked for Justice Stephen Breyer and then-Chief Judge Merrick Garland and helped litigate abortion cases in Arkansas, Alabama, Kentucky and other states.
Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.
Katherine Spillar is the executive director of Feminist Majority Foundation and executive editor of Ms., where she oversees editorial content and the Ms. in the Classroom program.
Roxanne Szal (or Roxy) is the managing digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.
Shoshanna Ehrlich is professor emerita of women’s, gender and sexuality studies at the University of Massachusetts Boston. Her books include Who Decides: The Abortion Rights of Teens and the co-authored Abortion Regret: The New Attack on Reproductive Freedom. She is currently collaborating with the Planned Parenthood League of Massachusetts’ ASPIRE Center for Sexual and Reproductive Health on a minors’ abortion rights and access project.