In Idaho case, Supreme Court takes a mulligan

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In 1855, suffragist and abolitionist Lucy Stone mused that fighting for the right to vote would accomplish little if women didn’t also have the “absolute” right to control their bodies. “Not one wife in a thousand can do that now, and as long as she suffers this bondage, all other rights will not help her to her true position,” she wrote.

Stone’s point is once again relevant, 169 years later. Fourteen states ban abortion and some even force pregnant people to suffer serious, sometimes permanent injury rather than permit them to get a medically necessary abortion.

The Supreme Court could have used a case it just decided, Moyle v. United States, to stop states from doing this. It did not. Instead, after a full briefing and two hours of oral arguments, it punted.

Normally, federal law preempts, or overrides, conflicting state law. If both state and federal law regulate something, and a person can’t comply with both because the two laws clash or otherwise can’t be simultaneously satisfied, then federal law takes precedence under the Constitution’s Supremacy Clause. In Moyle, the problem involved just such a conflict: Emergency Medical Treatment and Active Labor Act (EMTALA), a federal law, requires most hospitals and physicians providing emergency care to stabilize a patient with a medical condition that puts their life or health in serious jeopardy. But Idaho law criminalizes such care when it requires providing an abortion to a patient whose health may be permanently damaged without it but who isn’t imminently going to die.

Federal law typically prevails in such a conflict. But here, we still don’t know.

We do know from oral argument and the concurring and dissenting opinions that there were three justices in favor of finding that federal law preempted Idaho’s: Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. We also know there were three justices in favor of finding that Idaho law prevailed, reasoning among other things that EMTALA requires hospitals to protect the lives of “unborn child[ren]”: Justices Samuel Alito, Clarence Thomas and Neil Gorsuch. Yet neither group could command a majority. Thus, the case will continue at the district court with an injunction in place against enforcing Idaho’s abortion ban inconsistently with EMTALA.

Why did the court “take a mulligan,” as Justice Jackson wrote? Justice Amy Coney Barrett claimed that further proceedings could clarify whether Congress, under the Spending Clause, can require recipients of federal funds to violate state criminal laws. But this is not an issue that needs address. As Jackson wrote, “[t]he textual conflict [between the two laws] is plain.”

Meanwhile, the status quo remains intact in the five other states besides Idaho that ban abortion without any health exception. In Texas, South Dakota and elsewhere, if a pregnant woman has severe preeclampsia in the second trimester or has preterm, premature rupture of membranes or is miscarrying, she must continue enduring her medical emergency and possibly sustain permanent injury as a result. Why? So her fetus can have another month, week or even just one more day of existence in utero before dying.

This is not hyperbole. It has happened again and again in our post-Dobbs nation.

The Supreme Court has done this before. In 2021, it declined to enjoin Texas’s prohibition on abortion after six week’s gestation before Dobbs was decided. The majority in that case claimed it was not “shrink[ing]” from the task of defending the supremacy of the Federal Constitution over state law” but instead was allowing petitioners the opportunity to “vindicate the supremacy of federal law” through other means.

The court’s refusal to act has real consequences. Perhaps it will reconsider the issue at a future date. But nothing is certain, other than the continuation of fear and confusion over when emergency abortions are permitted under state criminal abortion bans.

We still enjoy the right to make our own reproductive decisions in Minnesota, at least for now. But our rights will not be secure without the passage of something like the Equal Rights Amendment, which once again failed in the last legislative session. And if Trump wins the presidency and Republicans win Congress, not even a state constitutional amendment will protect us.

This is a national battle. Fight for our rights now and vote for them this November.

Laura Hermer is a professor at Mitchell Hamline School of Law in St. Paul.