The Court’s Big Abortion Decisions Are Out. What Now?

Dan Gorenstein (DG): Hey, it’s Dan. We’re producing a special episode in light of yesterday’s important abortion ruling.

On June 27th, the Supreme Court cleared the way for hospitals in Idaho to, temporarily, continue performing emergency abortions when a woman’s health is at risk.

It’s the second of two big abortion rulings to come down this month with major consequences for state and federal policy, and the health and safety of millions of people. 

The other decision preserved access to a widely used medication at least for now.

Today, health reporter Shefali Luthra helps put this pair of rulings into context. From the studio at the Leonard Davis Institute at the University of Pennsylvania, I’m Dan Gorenstein. This is Tradeoffs.

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DG: Shefali Luthra is a former correspondent for Kaiser Health News. She now reports for The 19th, a nonprofit newsroom that covers gender and policy and has published a book, ‘Undue Burden’ on the impact of Roe’s repeal.  

Shefali was just at a conference on a panel at USC in Los Angeles when we spoke to her a few hours after yesterday’s ruling. Shefali, how are you? Good afternoon.

Shefali Luthra (SL): I am doing alright. It’s good to be with you. 

DG: So, it’s been two years since the Supreme Court overturned Roe v. Wade eliminating the federal right to abortion in America. What’s evolved in its place, as you know, is a confusing patchwork of state and federal policies and a whole mess of lawsuits, with some winding their way up to the highest court in the land.

So, Shefali, let’s start with the decision that just came out this week first by accident on Wednesday and then more officially on Thursday. 

News montage: We’ve just learned thanks to reporting by Bloomberg that the court earlier today mistakenly posted what appeared to be an opinion. // The document is what appears to a majority opinion in one of the most significant cases of the term.

DG: That was insane, right?

SL: It was crazy. It really was as if someone or someones just can’t keep Supreme Court decisions on abortion under wraps until they’re meant to be published. Because Dobbs two years ago was also leaked, and now here we are with this opinion being accidentally published a full day before the court means to put it out there.

DG: So, let’s tee this case up. Moyle v. United States. Basically, the question in front of the court was to resolve this fundamental clash between federal and state laws. This federal law known as EMTALA requires any hospital that gets money from Medicare to care for a patient that shows up in a medical emergency. The state law is Idaho’s strict abortion ban that prohibits docs from performing abortions unless a pregnant woman’s life, not just her health, is at risk. 

As you wrote in your article, the court punted on this key question. So what now?

SL: What now is, I mean, this case continues to make its way through the courts. For now, EMTALA protects the right to an abortion in medical emergencies in Idaho, as it is meant to do across the country. But this uncertainty, this ambiguity for health care providers and patients remains because there is no definitive answer as to how these different laws interact. 

And on top of that, we have questions about will the federal government change? Will we have a Trump administration and a Department of Justice that interprets EMTALA differently and does that change the case further? There is just so much more that we will have to watch, and in the meantime, people’s lives and health will be hanging in the balance.

DG: Any sense at this early moment of how long it might take for the lower courts to reach a final verdict, which is what the Supreme Court did by effectively just saying, “We’re not going to make the decision. We’re going to send it back down?”

SL: Frankly, I think people are so stunned by this decision that we don’t really know how long it will take. In her opinion, which was part concurrence, part dissent, Justice Ketanji Brown Jackson suggested that the Court could very well hear this case again in a couple of years. Whether that is an accurate time, I think, remains to be seen.

DG: Obviously this case is focused on Idaho, but other states have similarly strict bans. In your mind, what ripple effects do you think this decision is going to have across the country?

SL: I think what this does is it leaves uncertainty for health care providers and arguably, it emboldens certain states to continue to try to restrict access to abortion in states where they have these bans that have exceptions for life, but maybe are less forgiving on health. I think there’s a real world where they look at this decision and they feel justified in that interpretation and try and continue to deny people access to abortion in medical emergencies.

DG: You say you believe this could embolden more conservative states that are interested in restricting abortion access, but do you think it could have the opposite result too? I mean, like ultimately, Idaho, as of this ruling, must continue to provide emergency abortions.

SL: It’s a good question, and this is where we get into the levers of how EMTALA has actually been enforced. When we look at the number of complaints that have been filed, and then in turn the number of hospitals that have been penalized for potentially violating EMTALA, very, very few penalties have been issued and some complaints have been rejected by the Biden administration. So in theory we have this ruling in Idaho that, you know, upholds EMTALA’s protection to abortion, but when we look in reality at how it’s enforced, there are still real questions about whether physicians and hospitals are actually given the legal comfort that they need to provide care in moments when patients require it for their health.

DG: Now I’ve got to imagine that emergency room docs aren’t the only ones facing tough choices in this new post-Roe reality.

I’m curious, Shefali, if based off of your reporting you can give us another example of a difficult decision that other providers will continue to wrestle with even once this Idaho eventually gets resolved.

SL: One that comes up often is pregnant patients who have cancer, because very often when you are pregnant, you cannot undergo chemotherapy. And essentially, the cancer is not immediately life threatening, but you cannot access the health care that would be appropriate because of the abortion ban — because of your pregnancy. And I’ve spoken to so many doctors who simply don’t have an answer to this. 

They can try and appeal to their hospital ethics boards and sometimes get abortions approved, but in other cases, they send pregnant patients with cancer out of state to get an abortion so that they can then come home and get cancer treatment. It’s something that would have been unthinkable in the past, and it’s something we’re living with now and will continue to live with.

DG: After the break, we turn to the Court’s other big June ruling on abortion. 

MIDROLL

DG: We’re back with health reporter Shefali Luthra breaking down the Supreme Court’s first major rulings on abortion since overturning Roe two years ago.

Let’s turn to the other big ruling, Shefali, from earlier this month, weighing in on people’s access to a common abortion pill. 

More than half of all abortions in the U.S. now involve this pill known as mifepristone. 

Here the court ruled 9-0 in favor of leaving the status quo alone. What actually is the status quo?

SL: The status quo is that abortion is legal in some parts of the country, and illegal in many others, and that includes access to mifepristone. Fourteen states right now ban abortion throughout pregnancy, with very limited exceptions. Three more ban abortion after six weeks of pregnancy, which is quite early. This means that if you live in many of those states, including Texas and Florida, two of the biggest states in the country, you still can’t get an abortion in the place that you live.

You either have to travel out of state for an abortion, or try to order pills through the mail from a doctor in a different state, and hope that you get them. And these are very effective mechanisms for circumventing abortion bans, but they are not risk free. They are not without their own complications and challenges.

Where we are still is in a patchwork system where the story of abortion is increasingly becoming one of inequality and some people are able to access it, some people are able to circumvent abortion bans, and still others are not.

DG: It seems like these battles over the pill are far from over, just as you alluded to there. I’m assuming we’re going to see more lawsuits, more moves from state lawmakers. When it comes to this next frontier on pills, Shefali, what are you going to be watching for most when you prioritize? Because there’s lots.

SL: I mean, you’re right, there is so much. I will be watching the courts, but immediately I’ll be watching state legislatures because we have already seen lawmakers try and pass bills and laws that would find ways to stop telemedicine, stop people from prescribing and mailing medication to people in places with abortion bans.

They’ve been very frustrated because they view medication abortion as an existential threat to their abortion bans. There’s been a real hesitation to criminalize pregnant people, but I’m very curious to see if that changes in the face of how ubiquitous medication abortion has become.

DG: To close, I’d really like to circle back to this question of tough choices. I know that you have followed a number of people over the last couple of years since the fall of Roe v. Wade with your reporting and your book. Is there a patient that you’re thinking of who’s still going to be left with a tough decision in light of either of these two rulings?

SL: I thought a lot this week about a physician I met from Texas, and I wrote about him in a story for The 19th. This was after Texas’s six-week abortion ban took effect. And he saw a woman, she had twins. They were wanted twins, and then one fetus experienced complications and the other’s amniotic sac ruptured. She was not going to give birth to babies that would live. 

But she was 15 weeks pregnant and could not get an abortion in Texas. And they could see that this was a threat to her health, but it was not an immediate threat to her life. And so they sent her home to wait. 

And she waited, and she came back a few days later, and she had developed septic shock, and she stayed in the ICU for two weeks, and she suffered permanent kidney damage. Within a year of that, the doctor knew she would require a kidney transplant to live.  

And I think about that because these are the hard choices we are asking doctors to make. When is sick too sick? When do you intervene when you know that someone will deteriorate or are fairly sure they’ll deteriorate without an abortion, but you can’t say 100%?

And as a result, they suffer long-term health implications that could affect them for the rest of their lives. That could ultimately mean they live shorter lives.

And I think that we will still not see a resolution to those kinds of questions for a very long time.

DG: Shefali, thanks so much for taking the time to talk to us on Tradeoffs. 

SL: Thank you for having me.

DG: With this year’s Supreme Court abortion rulings behind us, attention turns to the election, when voters will weigh in on the issue in the presidential race and a handful of state ballot measures — all with huge implications for the future of reproductive health in America.

For more coverage of these cases and what’s on tap in November check out the links in our show notes and other resources on our website tradeoffs.org.

I’m Dan Gorenstein. This is Tradeoffs.