On Thursday, the Supreme Court punted on the biggest abortion case since it overturned Roe v. Wade almost exactly two years ago. The high court was asked to decide whether Idaho’s restrictive abortion law conflicts with a federal law requiring hospitals that receive federal funds to provide patients with “stabilizing treatment.” But instead of deciding the case, the high court sent the case back down to the lower courts.
As a practical matter, this means that *at least* while this case is being sorted out by lower courts, the federal law applies and women in Idaho can obtain abortions if a doctor determines that is the treatment needed to stabilize their health, not just to save their lives. The ruling is a temporary but real win for President Joe Biden’s administration and for women, who will now be able to get abortions in Idaho if that treatment is needed to stabilize their health. And somewhat surprisingly, Justice Amy Coney Barrett played a crucial role.
As Barrett pointed out, the positions of both Idaho and the federal government changed after the court first decided to hear that case.
After the court’s decision to overturn Roe, the Biden administration tried to push back against restrictive abortion laws like the one in Idaho, which has few exceptions unless the pregnant woman’s life is in danger. The administration argued that federal law’s requirement of “stabilizing treatment” can include an abortion if the woman’s health is at risk, not just if she is about to die. Idaho argued, in part, that there was no conflict between the two laws because stabilizing treatment only includes treatment that is available in the state, and Idaho only made abortions available in very limited circumstances.
But sometime in the middle of oral arguments in this case, things seemed to fall apart. Barrett essentially asked the attorneys representing Idaho why the Supreme Court was being asked to resolve this dispute at all. “I guess I don’t really understand why we have to address the stabilizing condition if what you say is that nobody has been able to identify a conflict,” Barrett said. This is, I would offer, a Supreme Court justice’s version of telling an attorney that they are wasting the court’s time.
As Barrett pointed out, the positions of both Idaho and the federal government changed after the court first decided to hear that case. Idaho’s attorneys were now arguing that there was no conflict between the state law and the federal law because the state Supreme Court and its Legislature interpreted Idaho’s law as permitting abortions in more cases than initially understood. For instance, as Barrett noted, the Idaho Supreme Court “explained that the Act ‘does not require objective certainty, or a particular level of immediacy, before the abortion can be ‘necessary’ to save the woman’s life.’”
On the other side, attorneys for the U.S. government argued that the federal law required abortions as stabilizing care in a very narrower set of cases than they previously did. For instance, the federal government explained that federal conscience laws would apply so that no doctor would be forced to perform an abortion. Simply put, the daylight between the two laws narrowed. As Barrett noted in her opinion, “Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA’s requirement is narrower than Idaho fears.” Had Barrett not set the wheels in motion to highlight why the court should dismiss the case and send it back to the lower courts, women in states throughout the country might be in a very different position today. If the Supreme Court sided with Idaho, it would have affected not just Idaho’s law, but also the half-dozen other states with laws that only allow for abortions to protect the life of the pregnant woman. The court’s decision to toss the case back down to the lower courts is a temporary stay of execution. This is the second big abortion case this term where the court failed to reach the merits of the disputes. In the case involving whether the Federal Drug Administration erred when it made it easier to access mifepristone, a pill used in more than half of abortions in this country, the court unanimously concluded that the doctors and conservative nonprofit groups behind the lawsuit lacked standing to sue. (In other words, they could not point to an injury that would allow them to bring the cases.) While this Supreme Court term is nearing its end, the fight over abortion rights in this country is far from over. Expect that one or both of these big abortion cases could come back to the high court in the next year or two. This is a respite, not necessarily a victory.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
