A fractured Supreme Court voted 5-4 Thursday to “dismiss as improvidently granted” Moyle v. United States, a case involving abortion in cases of medical emergencies. “Since this suit began in the District Court, Idaho law has significantly changed—twice,” Justice Amy Coney Barrett wrote in a concurrence, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, in favor of dismissing the case. And since the Supreme Court agreed to hear the case, “the parties’ litigating positions have rendered the scope of the dispute unclear, at best.”

The Supreme Court’s decision to punt the case shouldn’t have been surprising. During oral argument in April, Barrett and Kavanaugh struggled to see if there’s a real conflict between what federal law requires—that is, the Emergency Medical Treatment and Active Labor Act (EMTALA) command that hospitals accepting Medicare funds must provide emergency care—and Idaho’s law allowing abortion only to save the life of the mother. Two months later, they remain unsure whether such a conflict really exists.

Barrett noted in her concurrence that when the Supreme Court agreed to hear the case in January, the state of Idaho argued the federal government’s EMTALA guidance “would render Idaho’s Act virtually unenforceable. As Idaho understood it, the Government’s theory would allow physicians to perform abortions whenever necessary to avoid ‘serious jeopardy’ to the mother’s mental health.”

But in its briefs and at oral arguments, the federal government argued that EMTALA would never require offering abortion for mental health reasons. For its part, Idaho attested that every single emergent physical-health condition identified by the federal government was treatable under the state’s abortion law’s exception to save the life of the mother.

Barrett also noted that the federal government clarified that federal conscience protections would protect “both hospitals and individuals physicians” from having to perform abortions and also clarified that EMTALA “requires delivery, not abortion” after viability, when a baby can survive outside the womb. In sum, she wrote, the Supreme Court’s decision to hear the case before the 9th U.S. Circuit Court of Appeals issued a final judgment was a “miscalculation” because “the parties’ positions are still evolving.” While sending the case back down to the lower courts, Barrett, Kavanaugh, and Roberts also voted with the three liberal Supreme Court justices to lift the stay of a district court ruling because “even with the preliminary injunction in place, Idaho’s ability to enforce its law remains almost entirely intact.”

The other six justices disagreed with them about the potential lack of conflict between federal and state law, pointing to the text of the statutes. While two liberal appointees, Justice Elena Kagan and Justice Sonia Sotomayor, voted to dismiss the case on the grounds that the Supreme Court should never have taken up the case before the 9th Circuit issued a judgment, they think there’s an obvious conflict. Kagan wrote in a concurrence joined by Sotomayor that EMTALA requires stabilizing treatment when a woman’s health is in “serious jeopardy,” but Idaho’s law “allows abortion only when ‘necessary to prevent’ a pregnant woman’s ‘death.’” Indeed, Justice Samuel Alito agreed in his dissent joined by Justices Neil Goruch and Clarence Thomas that the case is “a straightforward question of statutory interpretation.”

The Kagan concurrence and the Alito dissent disagree on many points, including what EMTALA’s command to protect an “unborn child” means—and whether it’s plausible that a Congress and pro-life Republican president who banned federal funding of abortion except to save the life of the mother in 1986 would have passed a law that same year (EMTALA) requiring hospitals to perform abortions in less serious situations.

But perhaps most significantly, Alito effectively conceded that Kagan and pro-abortion rights groups are at least partially right about the conflict between EMTALA and Idaho’s abortion law.

Kagan noted Idaho’s “largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).” These cases generally, if not entirely, involve previable premature rupture of membranes (PPROM)—when a pregnant woman’s water breaks before 22 weeks of pregnancy. Before viability, hospitals typically offer both expectant management and immediate delivery due to the risk of sepsis. But Idaho’s largest hospital network told the court in an amicus brief that due to “legal uncertainty” surrounding Idaho law, “these patients are now being transferred out of state unless they are at imminent risk of death.”

In a brief to the court, the state of Idaho emphasized that its state Supreme Court has already ruled there is no requirement for the threat to be “immediate” before a woman can get such treatment, and the law only requires doctors to exercise “good faith” medical judgment that is “wholly subjective.” The Idaho abortion law, according to the state’s brief, allows treatment for “a pregnant woman whose water breaks before her child is viable because Idaho’s life-of-the-mother exception would apply. This is why the [9th Circuit Court of Appeals] stay panel below had no trouble concluding that every circumstance described by the administration’s declarations involved life-threatening circumstances under which Idaho law would allow an abortion.”

Alito’s dissent, however, claims there “may be” a conflict between the federal government’s EMTALA guidance and Idaho’s abortion law in some of these PPROM cases. As he built his argument that the case must be decided now due to existing conflict, Alito wrote that before 34 weeks of pregnancy the “chances of conflict” between state law and the Biden administration’s EMTALA guidance “are greatly increased,” and “before the 24th week of pregnancy, the potential for conflict appears to be even higher.” 

According to Alito, because Idaho’s abortion law imposes a “subjective” standard for doctors to determine when abortion is necessary to save the life of the mother: 

[D]ifferent doctors may reach different conclusions about when PPROM endangers the woman’s life. At least some may conclude in some cases of PPROM occurring before the 34th week of pregnancy that the woman’s life is not endangered since she may never develop a serious infection, let alone life-threatening sepsis or any other potentially fatal condition, if she receives proper treatment. … Rather, those doctors may believe that Idaho law requires them to try to delay delivery long enough to save the child’s life, unless PPROM becomes sufficiently “severe” to cause “infection and serious risk of sepsis.”

According to the Government’s experts, however, EMTALA requires a hospital to perform an abortion at the woman’s request whenever PPROM is diagnosed, even if the woman has not yet developed an infection or any other health complications. That is because, they assert, it can be “reasonably expected” that, in “the absence of immediate medical attention,” PPROM would “plac[e] the health” of the pregnant woman “in serious jeopardy” or cause “serious dysfunction” to her reproductive organs.

Dr. Ingrid Skop, an obstetrician who has delivered more than 5,000 babies and serves as vice president of medical affairs for the pro-life Charlotte Lozier Institute, thinks Alito is mistaken both about some medical realities and the existence of a conflict between EMTALA and Idaho law. “If he’s actually saying that he thinks the government is saying that at 32 weeks we’re going to do an abortion, I think he misunderstands,” Skop told The Dispatch.

While Alito raises the specter of EMTALA guidance requiring some abortions at up to 34 weeks of pregnancy in cases of premature rupture of membranes, Biden administration Solicitor General Elizabeth Prelogar said EMTALA would be limited to a much smaller number of cases before viability. “There can be complications that happen after viability, but there, the standard of care is to deliver the baby if you need the pregnancy to end because it’s causing these severe health consequences for the mom,” Prelogar told the Supreme Court on April 24.

While Alito suggests federal EMTALA guidance could require abortion in up to 2 percent of pregnancies where water breaks before term, less than 0.3 percent of pregnant women experience PPROM before 25 weeks, and in only a fraction of cases before viability would a woman immediately opt for a termination of pregnancy.

“If my hospital routinely makes an attempt to save 22-weekers, and a woman comes in with PPROM at 21 and 2 [days] and no sign of infection, she’s highly likely to want expectant management, because if she can get five days, then then that neonatologist may be able to save her baby,” Skop said. A recent study in the British Journal of Medicine of PPROM before 23 weeks of pregnancy backs up that experience: While 30 percent of women whose water broke between 16 and 18 weeks of pregnancy chose termination of pregnancy without expectant management, that figure dropped to 3 percent when PPROM occurred between 22 and 23 weeks of pregnancy.   

Skop thinks that in cases of pre-viable rupture of membranes, all state abortion “laws as written would allow that abortion to be performed.” She co-wrote a paper in July 2022 for the Charlotte Lozier Institute, the research arm of the largest pro-life group in America, making the same argument, and has urged state medical boards, health departments, and attorneys general to provide such guidance to hospitals. As soon as PPROM arises before viability, Skop says that qualifies as a life-threatening condition under the law because it’s hard to predict who will get very sick very fast. Sepsis following PPROM is the condition that injured Amanda Zurawski in Texas in 2022 and killed Savita Halappanavar in Ireland in 2012 (after doctors missed several signs that infection was present). The British Medical Journal study found that out of 364 women who developed PPROM before 23 weeks of pregnancy, “Five women became severely unwell with sepsis; two died and another three required care in the intensive treatment unit.” Idaho’s law thus allows immediate delivery in these cases because, as the state Supreme Court has ruled, “there is no ‘certain percent chance’ requirement that death will occur under the term ‘necessary’—and to impute one would only add an objective component to a wholly subjective defense.”

But the fact that Alito sees a potential conflict between EMTALA and Idaho’s law should be another alarm for states that have failed to provide clarifying guidance to hospitals. After the 2022 Dobbs decision, there have been cases in multiple states with anti-abortion laws in which pregnant women experiencing PPROM a month or more before viability have been told that early delivery is not an option due to abortion law; in some cases hospitals have endangered women by sending them home without first admitting them for close monitoring, as is standard practice for expectant management. But only some states have provided clarifying guidance. The Texas Legislature (almost unanimously) voted in June 2023 to clarify PPROM falls under its exception. Before the Florida Heartbeat Act took effect in May, the state agency in charge of regulating hospitals issued guidance that “physicians in Florida should follow established standards of care regarding the most appropriate course of action for” treating women with premature rupture of membranes, and Nebraska did the same before the state passed a law limiting abortion. 

“Does Idaho put out any kind of guidance?” Barrett asked Idaho Deputy Solicitor General Joshua Turner on April 24. Turner mainly pointed to the Idaho Supreme Court’s 2023 ruling. But if the state had provided hospitals the degree of clarity found in that ruling and its Supreme Court briefs two years ago, it might not be embroiled in this EMTALA lawsuit today.