It’s been two months since the Supreme Court overturned Roe v. Wade, and it appears the court is going to have to deliberate on abortion again very, very soon. That’s because overturning Roe was never going to “settle” the matter but instead unleash a whirlwind of new legal challenges. Now, lawsuits over abortion bans in Idaho and Texas appear to be on a collision course headed right back to the high court.
On Wednesday, a federal judge in Idaho agreed with the Department of Justice, ruling that the state’s abortion ban must allow hospital doctors to provide abortions when a pregnant person’s health or life is at risk. (Pregnancy can be life-threatening in cases of pre-eclampsia, incomplete miscarriages that cause sepsis, and, yes, ectopic pregnancies.) The judge agreed that the state ban, as written, violated a federal law—the Emergency Medical Treatment and Active Labor Act (EMTALA)—that requires hospitals receiving federal funds to provide emergency care.
The ruling means Idaho doctors cannot be criminally charged for performing abortions in hospitals in crisis situations, and it was a shred of good news, even though the rest of the ban still takes effect Thursday. It bans all abortions except in cases of rape, incest, or risks to the pregnant person’s life.
But earlier this week, a judge in Texas who was appointed by former President Donald Trump ruled the opposite way about that state’s abortion ban, saying it didn’t violate EMTALA. The case came about after Texas filed suit against the DOJ over its July guidance stipulating that, by law, hospitals have to provide abortions in emergencies. The judge in Texas said the guidance didn’t “consider the welfare of unborn children.”
Here’s where the Supreme Court comes in. The Justice Department will very likely appeal this Texas ruling, and that appeal will be heard by the ultra-conservative 5th Circuit Court of Appeals (which let the Texas bounty hunter law take effect last September). That court will probably uphold the decision. The DOJ would likely appeal that up to SCOTUS. Then, Idaho will likely appeal the ruling over its law to the 9th Circuit Court of Appeals. Politico says the 9th Circuit has gotten more conservative in recent years, so it may or may not uphold the decision in the DOJ’s favor. If the two circuit courts issue conflicting decisions, the Supreme Court will step in to resolve the “circuit split.”
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“Without a federal right [to] abortion, this is the type of legal chaos that most people were predicting would be happening,” Greer Donley, an assistant professor at the University of Pittsburgh Law School, told Reuters.
There are still many things that must happen: The cases need to get appealed, appeals courts need to rule, the parties need to appeal those rulings—but if these appeals are done on an emergency basis, the suits could land on the Supreme Court’s “shadow docket” for a preliminary ruling in a matter of days or weeks, then again on its regular calendar for arguments as soon as this fall.
I’m already shuddering when I think about what Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett may say about saving the lives of pregnant people who are about to die when there is also an embryo or fetus to consider.