Statement on the Supreme Court’s Decision in Moyle v. US and Idaho v. US

On Thursday June 26, 2024, the Supreme Court published their decision in Moyle v. US and Idaho v. US, a pair of consolidated cases in which the Court considered whether EMTALA—a federal statute that guarantees the right to stabilizing emergency care, including emergency abortion—preempts Idaho’s draconian total abortion ban. In the 6-3 draft opinion, the Court dismissed the case as “improvidently granted” on the basis that the Court should not have intervened as early as it did. The case will return to the lower courts, whose previous order blocking Idaho from enforcing its abortion ban will go back in effect.

This outcome is not a victory for pregnant people in Idaho or in any one of the 14 states with total abortion bans. By failing to unequivocally rule against Idaho’s distorted legal theory, this Court continues to perpetuate legal violence that relegates pregnant people to subhuman existence. As Justice Ketanji Brown Jackson articulated in her opinion, “This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it. And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price.” 

While the Court absolves itself of its decision-making burden in Moyle and Idaho, pregnant people in Texas continue to be deprived of the right to emergency abortion care in contravention of federal law. While the Court absolves itself of its constitutional duty, pregnant people in Texas who face life-threatening complications will continue to be denied healthcare. While the Court drafts hundreds of pages of substance-less decisions, people will continue to die because of their inaction.

The EMTALA decision is eerily reminiscent of the Court’s ruling in FDA v. Alliance for Hippocratic Medicine—the other abortion case from this term—in which they upheld FDA approval for the abortion drug mifepristone against ideological challenges from anti-choice “medical” groups. That decision, like Moyle and Idaho, was not based in the fundamental notion that pregnant people deserve unadulterated access to healthcare and autonomy over their pregnancies. Rather, the Court found that the Alliance for Hippocratic Medicine lacked Article III standing to bring suit, leaving open the door to future challenges against the FDA’s expert scientific authority.

It would be disingenuous to deny the potency of conservative legal activism in a post-Roe America. All it takes is cherry picking the best plaintiffs, positing a vaguely-originalist legal argument, and making appeals to “history and tradition” to sway this Court’s conservative supermajority. 

In a legal landscape devoid of explicit constitutional protections for sex equality, which encompasses the rights to abortion and bodily autonomy, decisions like these will become commonplace. The common thread linking these cases is the fact that pregnant people are always put on the defense—rights are either temporarily safeguarded behind legal technicalities or completely eviscerated, as in Dobbs. There is no in between. 

We need federal action and an explicit federal constitutional right to abortion. There is only one comprehensive solution—the Equal Rights Amendment. The ERA has been used at the state-level in Nevada and Pennsylvania to strike down restrictions on abortion. It has been lauded by renowned constitutional scholars like Harvard’s Laurence Tribe and Columbia’s Ting Ting Cheng as the most powerful legal remedy for sex inequality. And, most urgently, it is awaiting publication by the National Archivist after having fulfilled the amendment requirements outlined in Article V.

Without immediate federal action, starting with the Equal Rights Amendment, pregnant people in Idaho and beyond will continue to suffer the consequences. In the words of Justice Jackson, “While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.”