EMTALA Dissents: Jackson Warns of ‘Storm Clouds’ for Pregnant Women, While Conservatives Long for Fetal Personhood

Justices Amy Coney Barrett and Ketanji Brown Jackson at the State of the Union on Feb. 7, 2024. (Chip Somodevilla / Getty Images)

The Supreme Court had the opportunity this week to, as Justice Jackson stressed in her partial dissent, “rec­ognize the rights that EMTALA protects.” Instead, it punted, dismissing the consolidated cases of Idaho v. United States and Moyle v. United States—thereby, again quoting Jackson, “squandering” its “chance to bring clarity and certainty to this tragic situation.”

The justices also voted to dissolve the stay it had imposed on the district court’s injunction, which had blocked Idaho’s draconian abortion law, which only permits abortion under life-threatening circumstances, from taking effect.

By way of a brief background:

  • This case was set in motion in response to Idaho’s blatant refusal to comply with a post-Dobbs memo from the Department of Health and Human Services reminding states that EMTALA requires hospitals to provide abortion care when it is the “stabilizing treatment necessary to resolve” the presenting emergency of a pregnant patient, regardless of state laws.
  • Thumbing its nose at the Biden administration, Idaho vowed it would not “turn emergency rooms into federal abortion enclaves,” prompting the administration to bring suit in order to compel the state to provide abortions in compliance with EMTALA’s health preservation mandate.

The Court’s decision “mostly just reroutes the case back through the normal order,” wrote reporter Kate Riga. But for the moment, it offers patients and doctors a modicum of relief from the “months-long catastrophe” imposed on them by the Court’s stay of the injunction. The dissolution of the stay does mean that at least for the moment, Idaho doctors must provide health-stabilizing abortions in accordance with EMTALA.

But this is a temporary stopgap measure limited only to Idaho.

Capturing the cruelty of this catastrophe, Dr. James P. Souza, a chief physician at an Idaho hospital, underscored the litany of questions that Idaho’s abortion law forces doctors to address when treating a patient with a dangerous pregnancy condition:

Is she sick enough? Is she bleeding enough? Is she septic enough for me to do this abortion and not risk going to jail and losing my license? … When the guessing game gets too uncomfortable, we transfer the patients out at a very high cost to another state where the doctors are allowed to practice medicine.”

This devastating on-the-ground reality makes clear why the Court’s dismissal of the case drew the fierce ire of Justice Jackson, who dissented from this portion of the decision. Hinting at what many commentators have remarked on as a politically motivated duck and cover in advance of the November election, she wrote that in so doing, the Court was conveniently “avoid[ing] issues that it does not wish to decide.” 

And while this was not a motivating consideration for dissenting Justices Alito, Gorsuch and Thomas—who embraced a storybook fetal personhood analysis of EMTALA (which I will explain shortly)—it may well have been a delay tactic for the so-called “middle-three” Justices Barrett, Kavanaugh and Roberts, based on a possible awareness of what a decision holding that gravely ill pregnant women are not entitled to emergency abortions to protect their health might have meant in terms of election outcomes.

Jackson accordingly admonished her colleagues for refusing to “rec­ognize the rights that EMTALA protects,” particularly since “[o]ther States … have enacted leg­islation that gives rise to the same sort of legal conflict that Idaho has created.”  This, she proclaimed, “is not a victory for pregnant patients in Idaho. It is delay.” 

Warning of the “storm clouds [that] loom ahead,” Jackson condemned the Court’s failure to resolve the case on the merits, in accordance with the long-settled principle that “state laws that conflict with federal laws, are ‘without effect.’” As a result, the decision leaves “pregnant people experiencing emergency experiencing emergency medical conditions … in a precarious position, as their doctors are kept in the dark about the law requires.”

Rather shockingly, at least at first glance, the justices that Jackson called out for voting to dismiss the case include her liberal colleagues Justices Sotomayor and Kagan—although the three agreed the Court’s stay of the injunction should be lifted, since, as Kagan wrote in her concurring opinion, “EMTALA requires hospitals to provide abortions that Idaho’s law prohibits. … Idaho’s law is pre-empted.“

Writing for Slate, Mark Joseph Stern put his finger on the explanation for their divergence with respect to the dismissal of the case—namely, that “the compromise is obvious: Kagan and Sotomayor agreed to dismiss the case in exchange for a reinstatement of the stay in Idaho.” 

The Court’s unrepentant hardcore conservative justices—namely Alito and Thomas, together with Justice Gorsuch (who is not always aligned with them)—likewise dissented from the Court’s decision to dismiss the case. There is no mystery here: They did so for diametrically opposite reasons from Justice Jackson’s unwavering commitment to protecting patients and doctors to the extent possible from the unmitigated harms of Idaho’s abortion law.

The dissent penned by Alito is an homage to the unborn child. Elevating the fetus to the status of a co-equal person, he insists that in accordance with EMTALA, federally funded hospitals are required to “protect the health of both a pregnant woman and her ‘unborn child.’” To honor this obligation, they accordingly “must treat, not abort the ‘unborn child.’” 

The conferral of personhood status on the fetus magically makes the conflict between EMTALA and Idaho’s abortion law disappear, since the health-stabilizing duty is now deemed to run equally to both mother and child. As Alito put it during oral argument, “Performing an abortion is antithetical to that duty.” 

However, as Justice Kagan made clear in her concurrence, EMTALA says nothing about fetal personhood. Rather, the references to unborn children are either directly tied to protecting the health of a woman in labor or ensuring that “a woman with no health risks of her own can demand emergency-room treatment if her fetus is in peril.”

As Jackson warned, “A storm cloud looms” over the abortion rights of those in abortion ban states without a health exception. Although Justices Barrett, Kavanaugh and Roberts joined Kagan and Sotomayor in voting to dismiss the case, as previously noted, this may well have been a politically motivated move. And when the issue returns to the Supreme Court most likely after the election, there is little to suggest that they will again side with the liberal justices. Rather, Justices Kagan, Jackson and Sotomayor will again have to swim against the Court’s conservative tide in what will undoubtedly be a valiant effort to protect the well-being of pregnant people to the full extent permitted under federal law.

Up next:

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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.