This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
In reversing Roe v. Wade in 2022, the Supreme Court surely imagined that it was empowering states to ban abortion. But what if, instead, Congress protected access to abortion when the procedure is urgently needed to protect a patient’s life or health? This is the core question at the heart of Moyle v. United States, one of the two major abortion cases decided by SCOTUS this term. At issue in Moyle is the Emergency Medical Treatment and Labor Act, which requires that hospitals provide stabilizing care to patients who seek treatment at an emergency room. The Biden administration argues that this includes access to abortion for patients whose life and health are on the line, even in states like Idaho, with laws that ban abortion with extremely narrow life exceptions. The court’s conservative justices seemed skeptical of that claim when they reached out earlier this year to review the question early in Moyle v. United States. But by the term’s end, they had had second thoughts and sent Moyle back to the lower courts for further development.
The court’s decision reinstates a lower-court injunction that temporarily protects emergency access in Idaho, but the decision won’t do anything to prevent the chaos in emergency obstetric care that abortion bans have unleashed in many states. In the lead-up to Moyle, horror stories facing patients in life-threatening emergencies have become all too common: Physicians in Idaho report an increasing number of patients being airlifted to other states or turned away from emergency rooms, exacerbating a physician shortage that already plagues pregnant patients in the state.
In returning the case to the lower courts, the Supreme Court divided, with several blocs of justices writing concurring opinions that show us how obstetric care under abortion bans is riven by the social-movement politics of the post-Dobbs era.
In Moyle, the court’s three liberal justices emphasized the perspective of medical science: that abortion is an ordinary and valuable form of health care, especially in cases of medical emergency. Justice Elena Kagan in her concurring opinion, for example, wrote that EMTALA necessitates that hospitals “offer an abortion when needed to stabilize a medical condition that seriously threatens a pregnant woman’s life or health.”
She continued: “The statute simply requires the hospital to offer the treatment necessary to prevent the emergency condition from spiraling downward. And on rare occasions that means providing an abortion.” Justice Ketanji Brown Jackson voiced the concerns of a growing number of Americans who support abortion access in cases of threats to life or health, expressing alarm for the “pregnant people experiencing emergency medical conditions [who] remain in a precarious position following the Court’s decision.”
This view is held by many in the U.S. who support access for those with urgent health needs, even if they oppose abortion. But a vocal minority thinks otherwise.
The anti-abortion movement has long attacked the idea that abortion is health care. Many are skeptical that abortion exceptions ever address bona fide medical needs. Their rallying cry is that abortion is never necessary to save a woman’s life—meaning that terminations needed to save a woman’s life are not abortions.
In Moyle, one bloc of conservative justices, led by Amy Coney Barrett, vocalized a long-standing movement grievance—that exceptions for patient health are loopholes that simply excuse “abortion on demand”—even as they expressed concern for women who are not seeking abortions but nevertheless experience pregnancy complications.
In agreeing that the court should not have granted Idaho’s petition for certiorari, Justices Barrett and Brett Kavanaugh, as well as Chief Justice John Roberts, emphasized what they viewed as important concessions made during oral arguments by Solicitor General Elizabeth Prelogar, representing the Biden administration against Idaho’s ban: EMTALA would never require access in cases of threats to mental health and would do nothing to interfere with doctors who invoke conscience as grounds to refuse to provide urgently needed health care for pregnant patients. (We have already spotlighted the court’s efforts to expand health care refusals this term in a case about access to mifepristone, FDA v. Alliance for Hippocratic Medicine.)
In attempting to extract these concessions, the three swing justices in Moyle channeled established anti-abortion talking points suggesting that health exceptions often serve as a loophole for “abortion on demand.” In 1973, in a companion case to Roe v. Wade called Doe v. Bolton, the court had embraced as a definition of health “psychological as well as physical wellbeing.” Based on this conclusion, conservatives began equating health justifications with elective abortion—as a Senate Judiciary Committee explained in 1982, abortion opponents believed that Doe’s definition of health permitted “a right to abortion … for the entire term of pregnancy for virtually any reason, whether for the sake of personal finances, social convenience, or individual lifestyle.” Skepticism of mental-health justifications for abortion became a defining dimension of anti-abortion advocacy, with many movement leaders equating any health exception with “abortion on demand.” States began narrowing health exceptions, turning them into affirmative defenses or requiring permanent impairment of a major bodily function.
Barrett, Roberts, and Kavanaugh express this suspicion of patients protecting their health. Barrett reported Idaho’s concern that EMTALA would render its ban “virtually unenforceable” and that emergency rooms would function as “federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States’s mandate to perform abortions on demand.”
At the same time, the three echo mainstream anti-abortion groups’ professed concern for women with wanted pregnancies. Anti-abortion leaders have increasingly concluded that the treatment of these patients doesn’t even qualify as abortion; instead, it involves “delivery” or “maternal-fetal separation.”
But the justices on the court’s rightmost flank go further—and read the mere mention of unborn child in EMTALA as evidence that Congress intended to prioritize the needs of the unborn patient over the expense of the health and even life of the pregnant patient. Their dissent is a potent reminder that struggles over the court’s composition still matter, even with a conservative supermajority already in place.
Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch chastise their conservative colleagues for losing “the will to decide the easy but emotional and highly politicized question that the case presents.” They argue that EMTALA does not limit enforcement of state abortion bans, no matter how narrow their life exception, because they read unborn child in the federal law as treating the fetus as a rights-holding person. This reading of (or into) the statute is remarkable. In 1989, “after reports that some hospitals were refusing to care for uninsured women in labor … Congress expanded EMTALA to specify how it included people who were pregnant and having contractions.” Alito, Thomas, and Gorsuch never mention Congress’ concern with hospitals that were dumping uninsured patients who arrived at the emergency room in the midst of delivery. Instead, the court’s hard-line conservatives reason that the mere mention of the term unborn child in EMTALA creates “express protection of the unborn child.” In Alito’s reading, the statute demonstrates a kind of fetal personhood that renders invisible the personhood of the pregnant patient—and leaves a woman to fend for herself in the face of a medical emergency, while obliging doctors “to protect her ‘unborn child’ from harm.”
Today six justices view health exceptions with suspicion. This is a dramatic break with the nation’s history and traditions. As we show in a forthcoming paper, “Abortion’s New Criminalization,” abortion bans in the era before Roe protected doctors’ judgment in responding to the emergency health needs of pregnant patients, as the law after Dobbs fails to do.
The court’s divides in Moyle drive home what is at stake in the upcoming election. A second Trump term could bring several retirements—including the court’s most conservative justices, Alito and Thomas. Justice Sonia Sotomayor turned 70 in June, and Roberts will turn 70 in January. The next administration could see the end of the court’s supermajority or its expansion. Alito’s opinion is a reminder that no matter how far the court has gone in overturning Roe, it may be just the beginning.