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Justice Jackson Slams Supreme Court for ‘Dawdling’ in Leaked Abortion Ruling
Justice Ketanji Brown Jackson condemned the Supreme Court for inaction in a leaked draft of the Court’s emergency abortion ruling.
The Supreme Court briefly posted a draft of the decision in the Moyle v. United States and Idaho v. United States cases on Wednesday morning. Though the draft was quickly taken down, Bloomberg Law was able to obtain a copy, and posted it to its website. The draft is not final, meaning it could change between the draft and the released version, but it appears the Supreme Court will vote 6-3 to lift a stay on abortions in medical emergencies in Idaho.
The Idaho abortion law, as written, makes performing an abortion in the state a felony. Medical personnel who perform or assist in abortions could be suspended for six months on their first offense and have their medical licenses revoked on any further offenses.
There is an exception for cases where abortion is necessary to prevent the death of the pregnant person. The law also has a rape and incest exception, though the rape or incest must be first reported to police, and the abortion can only occur during the first trimester.
READ MORE: ‘Don’t Breathe Easy Yet’: Abortion Pill Safe Only ‘For Now’ Experts Say After SCOTUS Ruling
The federal-level Emergency Medical Treatment and Labor Act, however, expands the definition of a medical emergency that would require an abortion to other “grave harms” to the pregnant person’s health, including loss of fertility. The law requires Medicare-funded hospitals to provide essential care to those experiencing medical emergencies.
The question then is whether or not the more broad federal definition of “grave harms” supersedes the state law permitting abortion only in cases where the pregnant person’s life is at risk.
The Court punted on the central decision itself. Instead it lifts the stay while the cases at hand go forward, and the 9th Circuit Court of Appeals can decide whether or not to hear them, Bloomberg reported. Nor does the decision apply to any other states with similar abortion bans.
In her opinion, which concurred in part with the ruling and dissented in part, Jackson had harsh words for the Court for not acting more decisively.
“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson wrote. “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.
“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,” she wrote. “Because we owe them—and the Nation—an answer to the straightforward pre-emption question presented in these cases, I respectfully dissent.”
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