Justices seem set to allow emergency abortions in Idaho for now, a prematurely posted opinion says

WASHINGTON — The Supreme Court appears poised to allow emergency abortions in Idaho when a pregnant patient’s health is at serious risk, according to a copy of the opinion briefly posted on the court's website Wednesday and obtained by Bloomberg News.

The document suggests the court will find that it should not have gotten involved in the case over Idaho's strict abortion ban so quickly. By a 6-3 vote it would reinstate a lower court order that had allowed hospitals in the state to perform emergency abortions to protect a pregnant patient’s health.

Such an outcome would leave the issues at the heart of the case unresolved. It would also mean key questions remain unanswered, Justice Ketanji Brown Jackson wrote in a concurrence.

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she wrote.

The Supreme Court acknowledged that its publications unit inadvertently posted a document Wednesday. An opinion in the Idaho case would be issued "in due course,” court spokeswoman Patricia McCabe said in a statement.

Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch are listed as dissenting from the decision.

The finding may not be the court's final ruling because the justices' decision has not been officially released. The decision would mean the case would continue at the 9th U.S. Circuit Court, and could end up back before the justices.

The Supreme Court may be reluctant to make an abortion-related decision on the merits – rather than procedural grounds – in an election year, said Greer Donley, a reproductive law scholar and professor at the University of Pittsburgh School of Law.

A new poll from The Associated Press-NORC Center for Public Affairs Research found that about 7 in 10 U.S. adults favor protecting access to abortions for patients who are experiencing miscarriages or other pregnancy-related emergencies.

The decision would reverse the Supreme Court's earlier order that allowed an Idaho abortion ban to temporarily go into effect, even in medical emergencies. Several women have since needed medical airlifts out of state in cases in which abortion is routine treatment to avoid infection, hemorrhage and other dire health risks, Idaho doctors have said.

The nation’s top health official, Xavier Becerra, held a scheduled meeting with Idaho doctors and patients to discuss the state’s strict abortion ban in Boise Wednesday. Sarah Thompson, an Idaho OB/GYN, said that if a woman’s water breaks early in pregnancy, when the fetus has no chance of survival, she is unable to treat the patient by delivering the baby early.

“While there’s nothing we can do to save her baby, there is something we can do to preserve her health and her future fertility,” Thompson said.

The American College of Obstetricians and Gynecologists said that it hoped the court "listened to the scientific evidence and medical experts and will ultimately affirm the availability of emergency abortion care for people in every state,” said general counsel Molly Meegan.

The case started when the Biden administration sued Idaho, arguing that its abortion ban conflicted with federal healthcare law because doctors wouldn't be allowed to provide abortions to stabilize pregnant patients in rare emergency cases when their health is at serious risk.

Idaho argued its ban does allow abortions to save a pregnant patient’s life and that federal law does not require the exceptions to expand. The state attorney general’s office declined to comment Wednesday.

Katie Daniel, the state policy director of Susan B. Anthony Pro-Life America, said an Idaho state court had ruled that women’s lives don’t need to be in immediate danger to act.

Most Republican-controlled states began enforcing restrictions after the justices overturned Roe v. Wade two years ago, and Idaho is among 14 states that outlaw abortion at all stages of pregnancy with very limited exceptions.

The case is likely to return to the Supreme Court again, said Rachel Rebouche, dean of the Temple University Beasley School of Law and a reproductive law scholar. The New Orleans-based 5th U.S. Circuit Court of Appeals has ruled in a similar case that the federal law does not take precedence over an abortion ban in Texas.

So while the Supreme Court’s ruling would allow abortion in medical emergencies in Idaho, at least for now, Rebouche said, “Nearly 38 million people live in the 5th Circuit. That’s a lot of people whose lives aren’t changed at all by this.”

Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America, said that a decision without explicit guarantees that patients could get abortions in medical emergencies would be "catastrophic.”

Reports of pregnant women being turned away from U.S. emergency rooms spiked after the Supreme Court's 2022 ruling overturning the constitutional right to abortion, according to federal documents obtained by The Associated Press.

If the high court were to rule in Idaho’s favor, it would create a “world in which women would have to lose their reproductive organs,” said Sara Rosenbaum, a George Washington University health law and policy professor who is an expert on the federal EMTALA law.

The Justice Department’s lawsuit came under a federal law that requires hospitals accepting Medicare to provide stabilizing care regardless of a patient’s ability to pay. The law is the Emergency Medical Treatment and Labor Act, or EMTALA.

Nearly all hospitals accept Medicare, so emergency room doctors in Idaho and other states with bans would have to provide abortions if needed to stabilize a pregnant patient and avoid serious health risks such as the loss of reproductive organs, the Justice Department argued.

Idaho argued that its exception for a patient’s life covers dire health circumstances and that the Biden administration misread the law to circumvent the state ban and expand abortion access.

Carol Tobias, president of the National Right to Life Committee, said his group was glad the Justice Department says its arguments apply to rare cases.

Doctors have said Idaho’s law has made them fearful to perform abortions, even when a pregnancy is putting a patient’s health severely at risk. The law requires anyone who is convicted of performing an abortion to be imprisoned for at least two years.

A federal judge initially sided with the Democratic administration and ruled that abortions were legal in medical emergencies. After the state appealed, the Supreme Court allowed the law to go fully into effect in January.

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Associated Press writers Amanda Seitz and Linley Sanders in Washington, Geoff Mulvihill in Cherry Hill, New Jersey, Devi Shastri in Milwaukee and Hallie Golden in Seattle contributed to this report.