On abortion, the Supreme Court shows it doesn’t care about democracy after all

in Dobbs vs. Jackson Women’s Health, the Supreme Court famously declared that it would return the abortion issue to voters. Citizens could decide whether to ban abortion in their state.

So when federal law required hospital emergency rooms to provide abortions to women who faced imminent medical consequences if they continued with their pregnancies, the justices who voted to reject Roe v. Wade balked. They were relieved by the decisions of the people’s elected representatives, who carried out the plain language of the law without hesitation. We took this thorny issue out of their hands.

Oh, wait a minute. That didn’t happen. The Supreme Court is so hostile to abortion that to block it would require defying Congress and harming women.

A pregnant woman may be at risk of serious harm, but not death, if she does not terminate her pregnancy. Uterine bleeding may require a hysterectomy or cause kidney failure that requires lifelong dialysis. Preeclampsia can cause seizures, blindness, or hypoxic brain damage. Rupture of the amniotic membrane can cause sepsis and organ failure. If these occur early in pregnancy, the fetus may not survive, but early abortion can prevent these effects. (If it occurs after viability, the standard treatment is to deliver the baby, so abortion is not involved.)

However, Idaho only allows abortions if “necessary to prevent the death of a pregnant woman.” So women in Idaho are forced to endure such physical harm while waiting for their destined fetuses to die.What actually happens is that women routinely flown in from the statedelaying treatment and imposing significant costs on patients.

The Idaho law conflicts with the federal Emergency Medical Labor Act (EMTALA), which requires emergency rooms that accept Medicare funds (which means nearly all emergency rooms) to:Treatment necessary to stabilize the condition“Any individual” arriving with an “emergency medical condition.” According to this law, ER is a “serious impairment of bodily function,” “serious malfunction of an organ or part of the body,” or other non-fatal consequences, including those I have just listed. It is stipulated that the condition of a person exposed to the risk of death must be stabilized. EMTALA also states that it “preempts state and local laws to the extent that:” [state law] directly contradicts the requirements of this section. ”

Idaho wants to enforce that restriction despite federal law. The Biden administration has sued states to enforce EMTALA. The Constitution declares that federal law always supersedes conflicting state laws.

Seems like a simple case, right? But in January, the Supreme Court strangely decided that Stayed A lower court’s injunction preventing Idaho from enforcing its law in such cases is a strong sign that courts are inclined to uphold state law.And during Wednesday’s oral argument, members of the Republican majority played with in various ways It would override the clear language of federal law.

Justice Samuel Alito, author of “Dobbs,” pointed out that another provision of EMTALA requires care of a pregnant woman’s “fetus.” He somehow thought that a law using these words could not mandate abortion even if there was no chance of the fetus surviving.

Justices Thomas, Alito, Gorsuch, and Barrett attempted a second argument: that it is unconstitutional for federal funding laws to preempt state laws. But this path is probably unsustainable because it would disrupt a vast range of federal laws. Judge Kavanaugh suggested that Idaho modified its abortion ban to resolve the dispute. However, the recommendation for the state of Idaho is couldn’t explain How is abortion allowed when a woman faces permanent, non-life-threatening damage, such as brain damage or loss of fertility? Once again, the plain language of the Idaho law is problematic.

The judge’s twist is particularly ironic. wording Mr. Dobbs devoutly advocated the importance of democratic decision-making. Before Roe, “states were allowed to approach the issue according to popular opinion.” Although there were moves toward liberalization, egg It brought the political process to an abrupt end. “It usurped the power to address questions of vital moral and social importance that the Constitution clearly leaves to the people.”

Mr. Kavanaugh agreed, writing similarly: “The Constitution is neutral, and like many other difficult questions of U.S. social and economic policy, the Constitution is neutral, a matter for the people and their elected representatives to resolve through the democratic process of the states or Congress.” I will not deal with it.”

When it comes to women facing pregnancy-related medical emergencies, our elected representatives have already spoken out. Congress requires that women not be permanently harmed for prolonging a fateful pregnancy. Courts are literally trying not to hear it.

These perversions of the law are especially strange because nothing is at stake. Many in the anti-abortion movement were surprised and mortified when the victory in Dobbs led to the denial of necessary medical care to pregnant women. But that denial is what Idaho is fighting against. Federal regulations prevent fetal death. It requires hospitals to terminate pregnancies promptly only when it is certain that the fetus will die anyway and it is dangerous to delay.

Unless someone is so triggered by the thought of abortion that the mere thought of it paralyzes their rationality, why would anyone try to interfere?

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “.Burning down the house: How a libertarian philosophy was destroyed by delusion and greed” (St. Martin’s Press).follow him @Andrew Koppelman.