On Abortion, Supreme Court Shows It Doesn’t Care About Democracy After All

In Dobbs v. Jackson Women’s Health, the Supreme Court famously declared that it was returning the issue of abortion to the voters. The people could decide whether or not abortion was prohibited in their state.

So when a federal law required hospital emergency rooms to offer abortions to women who faced imminent medical disaster if they continued their pregnancy, the justices who voted to overturn Roe v. they took this complicated problem out of their hands.

oh wait That’s not what happened. The Supreme Court is so hostile to abortions that to prevent them, it will defy the national legislature and harm women.

Pregnant women sometimes face medical emergencies that put them at risk of serious harm, but not death, if the pregnancy is not terminated. Uterine bleeding may require a hysterectomy or lead to kidney failure requiring lifelong dialysis. Preeclampsia can result in seizures, blindness, or hypoxic brain injury. Rupture of the amniotic sac can lead to sepsis or organ failure. When they occur early in pregnancy, the fetus cannot survive, but these consequences can be prevented by early abortion. (If they happen after viability, abortion is not relevant, because the standard of care is to deliver the baby.)

Idaho, however, allows abortion only if it is “necessary to prevent the death of the pregnant woman.” So Idaho women must endure all this bodily harm while waiting for the doomed fetus to expire. What actually happens is that women are routinely transported out of state, delaying care and imposing enormous costs on patients.

Idaho’s law clashes with the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires emergency rooms that accept Medicare funding (which means almost all of them) to provide “the treatment that can require to stabilize the medical condition” of “any person” who arrives with an “emergency medical condition”. The statute says an ER must stabilize anyone who is at risk of “serious impairment of bodily functions,” “serious dysfunction of any organ or part of the body,” or other nonfatal consequences, including those that I just listed. EMTALA also says it preempts state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.”

Idaho wants to enforce its restriction despite federal law. The Biden administration sued the state to enforce EMTALA. The Constitution declares that federal law always trumps conflicting state laws.

Sounds like an easy case, right? But in January, the Supreme Court strangely stayed a lower court order that prevented Idaho from enforcing its law in such cases, a strong signal that the court is leaning toward upholding state law. And in Wednesday’s oral argument, members of the Republican majority toyed with a number of ways to override the clear language of the federal law.

Justice Samuel Alito, the author of Dobbs, noted that another provision of EMTALA requires care for a pregnant woman’s “unborn child.” He somehow thought that a law using those words could never require abortions, even in cases where the fetus has no chance of survival.

Justices Thomas, Alito, Gorsuch and Barrett tested a second argument, that it would be unconstitutional for federal funding laws to be abandoned to state law. But that would alter such a wide range of federal statutes that this path is probably unsustainable. Judge Kavanaugh suggested that Idaho has amended its abortion ban to remove the conflict. But the Idaho attorney could not explain how abortions could be allowed in cases where women face permanent injuries that are not life-threatening, such as brain damage or loss of fertility. Again, the plain language of the Idaho statute is a problem.

The judges’ contortions are particularly ironic after all of Dobbs’ pious recitation of the importance of democratic decision-making. Before Roe, “each State was permitted to address this subject in accordance with the views of its citizens.” There had been a movement towards liberalization, “but Roe he abruptly ended that political process.” He “usurped the power to address a question of deep moral and social importance that the Constitution unequivocally leaves to the people.”

Kavanaugh, in agreement, also wrote: “The Constitution is neutral and leaves to the people and their elected representatives to resolve through the democratic process in the States or Congress, like the many other difficult questions of northern social and economic policy – American that the Constitution does not address.”

As for women facing pregnancy-related medical emergencies, the people’s elected representatives have already spoken. Congress mandates that women should not suffer permanent bodily harm because they are forced to prolong their doomed pregnancies. The court is literally trying not to hear it.

These distortions of the law are especially strange because of what is not at stake. Many in the anti-abortion movement were shocked and dismayed when their victory in Dobbs led to the denial of necessary medical care to pregnant women. Yet this denial is what Idaho is fighting for. No fetus will die because of federal regulation. It only requires hospitals to quickly terminate a pregnancy in cases where the fetus is certain to die anyway and where delay is dangerous.

Why would anyone want to interfere with that, unless the idea of ​​abortion drives them so hard that even thinking about it shuts down their ability to reason?

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning the House Down: How Libertarian Philosophy Was Corrupted by Illusion and Greed“ (Press of Sant Martí). follow him @AndrewKoppelman.