After accidentally leaking it yesterday on their very own website, the Supreme Court of the United States has officially determined, in a 6-3 opinion, it will temporarily require the state of Idaho to allow doctors in emergency rooms to perform abortions in order to save the life or health of the mother.
The court’s three liberals were, incredibly, joined by conservative Justices John Roberts, Amy Coney Barrett and Brett Kavanaugh. Dissenting, naturally, were Samuel Alito, Clarence Thomas, and Neil Gorsuch. (Hey remember when Susan Collins swore that Gorsuch would never do anything to jeopardize the right to abortion?!? Pepperidge Farm remembers.)
Long story short, after Roe v. Wade was overturned, the state of Idaho outlawed all abortions except to save the life of the mother. However, the US government said that in order to comply with the Emergency Medical Treatment and Labor Act (EMTALA), the state would have to allow emergency abortions in cases where the mother’s health was in danger as well. Idaho did not like that very much at all, and said that they believe that the mother and fetus are both patients under EMTALA and that the doctors have just as much of an obligation to save the fetus as they do the mother. So, you know, big whoop if a few of the mother’s organs collapse, so long as they save that precious, precious baby.
EMTALA was passed in 1986 in order to prevent patient dumping — a despicable practice in which hospital emergency rooms relocate patients who don’t have insurance or cannot otherwise pay for treatment. It more or less requires hospital emergency rooms that accept federal funding to provide life-saving or stabilizing care to anyone who comes in regardless of their ability to pay. Many of us, naturally, would consider “about to lose a major bodily function” to be an emergency.
This decision, again, is only temporary, and reinstates a lower court’s ruling requiring Idaho to allow abortions in these cases until that court hears the case and comes to a decision.
Now, certainly, we may want to cheer for this — and it is very reasonable to want to applaud the bare minimum of human decency — but it’s important to remember that this is just temporary, and also that Republicans may not want something like this to be in the news too often so close to the election.
And oh, just one teeny problem: The fact that the Supreme Court punted on “does state law overrule federal law, it is a quandary!” means that the opposite result in Texas — in which the Fifth Circuit ruled that Texas state law does in fact overrule EMTALA — is also allowed to stand.
As Justice Ketanji Brown-Jackson explained:
So, to be clear: Today's decision is not a victory for pregnant patients in Idaho. It is 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. 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 Alito, in his dissent, appears to have contracted Internet Experts Disease; he explains that some medical emergencies could just, you know, kinda blow over!
When PPROM [Preterm premature rupture of membranes] occurs before the 24th week of pregnancy, the potential for conflict appears to be even higher. But in that situation, it may still be possible to manage the situation until the baby can be delivered, and there is a chance of a good outcome for both the mother and child, although studies have yielded different results. Thus, when PPROM occurs before the 34th week of pregnancy, there is a risk to the health of both the woman and her unborn child.
Alito then goes on to explain that, under Idaho’s Defense of Life Act, doctors are required “to consider whether performing an abortion is necessary to prevent the woman’s death” and that because this is a subjective standard, many doctors may disagree on whether an abortion is necessary in these situations. Therefore, there may be some doctors who think it is not!
At least some may conclude in some cases of PPROM occurring before the 34th week of pregnancy that the woman’s life is not endangered since she may never develop a serious infection, let alone life-threatening sepsis or any other potentially fatal condition, if she receives proper treatment. Rather, those doctors may believe that Idaho law requires them to try to delay delivery long enough to save the child’s life, unless PPROM becomes sufficiently “severe” to cause “infection and serious risk of sepsis.”
But the big bad government wants to give parents the option of deciding themselves, in cases of PPROM or other serious medical emergencies, if they want to have an abortion. Which, again, is just rude because a doctor may want to wait and see if they go into sepsis first. You know, just make sure they’re really, really close to death before doing anything to save their lives (or their health).
Alito’s other big reason for why he doesn’t think “health” should be a factor is because then, those evil pregnant people might try to use “mental health” as a reason to not force them to give birth against their will, and he doesn’t think that should be allowed because they could just make up anything!
Now, I don’t know about you, but I feel as though if a doctor told me, “Hey, so we’re just going to wait until you’re about to go into sepsis before treating you,” I would run. I would run very fast, right on out of that hospital. On a personal level, I won’t even go in a hot tub or let them turn the jets on when I get a pedicure, due to my long-standing terror of necrotizing fasciitis. As a menstruating woman, I grew up regularly panicking about toxic shock syndrome. Believe me when I tell you that I do not want any goddamned “wait-and-see” when sepsis is on the table and I can’t imagine that anyone else does either.
This is not an area in which anyone should be playing any games. A situation that could harm someone’s health could very quickly turn into a situation that could kill them. Generally speaking, most people would like to get ahead of these things!
Idaho, I would just like to note, “has a stand your ground law which removes the duty to retreat from any place a person has a right to be before using force in self-defense or in defense of another.” You are allowed to use lethal force to prevent someone from potentially killing you or someone else, regardless of whether or not that turns out to have been a good idea in hindsight. So you can kill someone who accidentally wanders onto your property and scares you, but you’ve gotta wait until you’re half dead before you can get an abortion — unless you want to be airlifted to another state, which is a thing that happens there now. No castle doctrine for the uterus in Idaho!
The ruling, again, will kick this decision back to federal court — but it will go to the same federal judge who issued the injunction against the Idaho law to begin with. So there may be some good news after all. Unfortunately, we’re not quite there yet.
PREVIOUSLY:
Speaking as the father of a little boy who was born at 27 weeks and barely survived, and whose pregnancy very nearly killed his mother, as well as the father of a little girl who cried herself to sleep every night because she didn’t know if her mother would make it out of the hospital alive, Justice Alito can consider himself to have a standing invitation to gargle my balls.
This is the real world. Bad shit happens. We have the knowledge to stop the worst from happening, but people like Alito would have us sit on our hands because “reasons.”
True story: sepsis killed my mother. Sepsis results in death 1/3 of the time (I was told, at the time). When I heard my mother had sepsis I immediately flew to see her (yes, I got to spend time with her before she passed). The reason they tell cancer patients to go to the hospital any time they have a fever is so that they hopefully DON'T GO SEPTIC! It is the BARE MINIMUM to NOT require pregnant people to go into sepsis before you will CONSIDER abortion as their best course of action.