Dear John,
In a callous and blatantly political decision in advance of the upcoming presidential election, the Supreme Court failed to answer a straightforward question: Does federal law, known as the Emergency Medical Treatment and Labor Act (EMTALA) that requires hospitals to perform emergency abortions for women facing potentially life-threatening pregnancy complications, supersede state abortion bans, like Idaho’s ban that was at issue in the case?
Instead, after taking six months to deliberate on this critical abortion case in which Idaho was challenging the mandate of EMTALA, the Court dismissed the case, sending it back through the appellate process while leaving in place a lower court order that prevents Idaho from enforcing its near-total abortion ban—for now.
Despite some news headlines declaring otherwise, make no mistake: This is by no means a win. Clearly the reactionary justices on the Court decided to punt a decision until after this fall’s elections (a similar case from Texas is on its way to SCOTUS). In the meantime, physicians in Texas and in 12 other states with similar bans have to wait as a matter of law until a patient’s condition deteriorates to the point where she faces imminent death before they can provide the necessary care.
The dangers to women’s health created by this Court could not be clearer. Justice Ketanji Brown Jackson characterized the Court’s action to dismiss the case: “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 … 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.”
This isn’t speculation. Women are presenting in emergency rooms with active miscarriages or having suffered preterm premature rupture of membranes (which is when the amniotic sac breaks, before the fetus is viable), and being turned away—then becoming septic once they return home. Hostile states attorney generals have made doctors fully aware that they can be prosecuted criminally for performing emergency abortions, even if in their professional judgment a woman’s health and ultimately her life, are in danger.
Which brings me back to the elections. If you’re anything like us here on the Ms. team, you were glued to the television set for Thursday night’s first presidential debate. Two key statements by Trump about abortion stood out to us.
He bragged (again) about putting “three great Supreme Court justices on the court and they happened to vote in favor of killing Roe v. Wade and moving it back to the states.” That’s true. What’s not true were his repeated statements that “all legal scholars” agreed with the Court’s decision and his suggestions that people in each state could now decide for themselves what they wanted abortion laws to be—they actually can’t. In all of the states that have enacted draconian abortion bans, it’s been male-dominated, Republican majority state legislatures that have decided the laws. (Wherever citizens can petition and propose abortion rights ballot measures, they do—and the measures win.)
Trump also claimed the Supreme Court had approved the abortion pill. It did not. If you follow Ms. reporting on mifepristone, you know the Court struck down the legal challenge to mifepristone, ruling the plaintiffs didn’t have standing. And you also know from Ms. reporting that Trump’s close allies who are proposing the policies his administration will follow—known as Project 2025—make banning mifepristone a central focus of their plans on abortion. (See Julianne McShane’s piece below on the debate.)
This of course has been informing the current polls. Women continue to say that abortion remains a top issue in their decision on who to vote for and women are saying they plan to vote for President Biden, while men are more likely to support Trump. Even among young voters, the gender gap is prominent: A recent Harvard Youth poll of 18- to 29-year-old voters saw Biden leading among young women by 33 points, compared to just 6 points among young men.
This fall, we’re voting as if our lives depend on it—because they very much do.
