Exclusive: Inside the Supreme Court’s negotiations and compromise on Idaho’s abortion ban

Term limits need to be on Congress as well

Term limits on all politics. This is a really good start.

Why should federal government government have control over your body? Why don’t each state applies it as their people wants it not the federal government

Term limits. 16 years maximum. Also SCOTUS justices should only be selected from the 13 Circuit courts. You should not take money from any donor, you're not a politician on the bench.

I think any woman of child bearing age in Idaho, that is willing, should be airlifted out of the State.

There are two super frightening aspects of this case. The first is that many of the Justices had no idea what the real world consequences of their decision overturning Roe would be. Second, and even more alarming is that some Justices simply don’t care if their rulings endanger the lives of pregnant women!

As a woman, I'm so happy to be alive to witness Kamala Harris becoming President. She was born for this time in history!

The Grifter Court has effectively put Money into Politics with Citizens United. Clarence Grifter Thomas being the deciding vote.

Were not going back . The women are coming Alito .

W t f IOWA!!

the executive branch ignores the supremes courts rulings already .. it doesn’t matter anymore

Huge surprise that Thomas and Alito don't actually care about women's health.....color me shocked!

A Russian poll reveals that Trump supporters are more bitter than usual these days.

Selected not elected.

Vote 💙 for Justice for all

Vote blue for womens health rights

Authoritarian regimes always start by adjusting the justice system to their needs!

It is good to see that the Supreme Court is transitioning. We recall when former President Obama said that his view was transitioning on many issues. It is good to see that the Supreme Court is not locked in and some members are also also transitioning.

ROE VS WADE should never have been a federal issue. It’s a personal issue which should belong in the states. Access to the laws is much, much easier. Iowa is a perfect example to what people want.

After the court in June 2022 overturned Roe v. Wade, more than a dozen states like Idaho began outright banning abortion. The Idaho law had exemptions only to prevent death of the pregnant woman and in instances of rape or incest. Other states instituted new restrictions on the procedure. The Biden administration, supporting reproductive rights, tried to immediately counteract some effect of the Supreme Court’s decision. It issued formal guidance saying the Emergency Medical Treatment and Labor Act (EMTALA), which requires stabilizing treatment regardless of a patient’s ability to pay, would preempt any state abortion ban in situations when an emergency termination was needed. In August 2022, the Justice Department sued Idaho, seeking an order that would block the state from enforcing its ban in emergency rooms when it conflicts with EMTALA. Idaho lost in an initial proceeding in a US district court, as a judge issued a temporary injunction against the abortion ban. While an appeal was pending, Idaho sought the high court’s intervention. The impact of the justices’ January order allowing Idaho’s ban to take effect was urgent and immediate. The state’s largest provider of emergency services increasingly had to airlift pregnant women experiencing complications out of state. As the weeks passed and Idaho and the federal government began formally making their case in filings before scheduled April oral arguments, the situation for pregnant women in medical emergencies – risking organ failure, the loss of fertility and permanent disability – became more evident. During the April 24 hearing, signs that the conservative bloc was splintering emerged. Justice Amy Coney Barrett, who had earlier voted to let the Idaho ban be enforced, challenged the state lawyer’s assertions regarding the ban’s effect on complications that threatened a woman’s reproductive health. She said she was “shocked” that he hedged on whether certain grave complications could be addressed in an emergency room situation. Barrett’s concerns echoed, to some extent, those of the three liberals, all women, who had pointed up the dilemma for pregnant women and their physicians. Doctors in Idaho had told the court that if they complied with federal emergency-care law and helped a pregnant woman in peril, they would be risking criminal conviction. Alternatively, if they transferred patients needing stabilizing care out of state, they risked seriously delaying medical attention and could exacerbate the harm. Judging from the public arguments alone, there appeared a chance the court’s four women might vote against Idaho, and the five remaining conservatives, all men, in favor of the state and its abortion prohibition. But at the justices’ private vote two days later, Roberts and Justice Brett Kavanaugh shattered any split along gender lines. They expressed an openness to ending the case without resolving it. They worked with Barrett on a draft opinion that would dismiss the case as “improvidently granted.” Barrett had come to believe the case should not have been heard before lower court judges had resolved what she perceived to be discrepancies over when physicians could perform emergency abortions, even if a threat to the woman’s life was not imminent. She would eventually deem acceptance of the case a “miscalculation” and suggest she had been persuaded by Idaho’s arguments that its emergency rooms would become “federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States’s mandate to perform abortions on demand.” She believed that claim was undercut by the US government’s renouncing of abortions for mental health and asserting that doctors who have conscience objections were exempted. In essence, Barrett, along with Roberts and Kavanaugh, were acknowledging they had erred in the original action favoring Idaho, something the court is usually loath to admit. They attributed it to a misunderstanding of the dueling parties’ claims – a misunderstanding not shared by the other six justices, who remained firm about which side should win. During a wide-ranging talk at a legal conference in Sacramento on Thursday, liberal Justice Elena Kagan said the court may have learned “a good lesson” from the Idaho case: “And that may be … for us to sort of say as to some of these emergency petitions, ‘No, too soon, too early. Let the process play out.’” During internal debate from the end of April through June, the court’s three other conservative justices – Samuel Alito, Clarence Thomas and Neil Gorsuch believed the facts on the ground were clear and that Idaho’s position should still prevail. They said the 1986 EMTALA did not require hospitals to perform any abortions and could not displace the state’s ban. Alito, who had authored the 2022 decision in Dobbs v. Jackson Women’s Health Organization overturning Roe, was adamant that the text of EMTALA required the opposite of what the Biden administration was advocating. He said the law compels Medicare-funded hospitals to treat, not abort, an “unborn child.” With Alito, Thomas and Gorsuch unchanged in their opposition to the proposed off-ramp, Barrett, Roberts and Kavanaugh needed at least two other votes for a majority to dismiss the case. Two of the liberals, Sonia Sotomayor and Kagan, were ready to negotiate, but with caveats. They disagreed with Barrett’s rendition of factual discrepancies and – more crucially – they wanted the court to lift its prior order allowing the ban to take effect while litigation was underway. This was one case in which liberals, usually holding a weak hand because of their sheer number against the conservative super-majority, had greater bargaining power because of the fracture between the Barrett-Roberts-Kavanaugh bloc and the Alito-Thomas-Gorsuch camp. Debate persisted for weeks over whether the order allowing the ban to be fully enforced should be lifted. The eventual compromise in Moyle v. United States brought together a bare majority: Barrett, Roberts and Kavanaugh, from the right, and Kagan and Sotomayor, from the left. They agreed that the case would be dismissed and the January order revoked. That meant Idaho would not be able to enforce its ban in emergency situations for the time being. (Justice Ketanji Brown Jackson, the third liberal on the court, agreed that the order should be lifted but refused to vote for dismissal.) When the court “stays” an injunction, as the justices had for Idaho, the premise is a litigant would suffer “irreparable harm” if the court failed to act. As Barrett, Roberts and Kavanaugh acquiesced, agreeing with Kagan and Sotomayor, to lift the stay, Barrett wrote, “the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances.” Alito quarreled with that conclusion and the presumption that the state no longer faced irreparable harm. Overall, the decision gave liberals and the Biden administration a rare win. In Idaho, it preserved some abortion access. But the question of whether federal law supersedes state law will inevitably return, either from US appellate court action in the Idaho matter, or from emerging clashes in other states. Jackson’s arguments against dismissal were the opposite of those on the far-right. She said physicians and their patients needed a straightforward answer now, not in a few years. She believed the state’s law must yield to EMTALA’s dictate of medically necessary treatment, including abortions in limited situations, to stabilize patients. But as much as Jackson protested that the court dodged the case, she implicitly acknowledged the leanings of conservatives who agreed to the dismissal and what the outcome might have been if they decided the merits.