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Guest Essay

By Mary Ziegler

Ms. Ziegler is a law professor at the University of California, Davis, and the author of “Roe: The History of a National Obsession.”

If you had asked me at the start of this Supreme Court term what the blockbuster abortion case would be, I would have focused on the one that could limit access to mifepristone, a drug used in a majority of U.S. abortions. But oral arguments last month suggested strongly that the justices might not even think that case has standing — which is to say, that decision is likely not to make much of a difference.

But a decision in the second case, on access to emergency abortions, may have much more profound consequences, both for November’s election and the ongoing struggle over reproductive rights. The case centers on the Emergency Medical Treatment and Labor Act, known as EMTALA, a federal law that was passed in the 1980s to prevent hospitals from turning away emergency-room patients who could not afford to pay. At issue is whether EMTALA requires physicians to offer emergency abortions even when state abortion bans — including those enacted after the overturning of Roe — do not permit them. The Biden administration brought suit against Idaho in federal court, arguing that federal law does pre-empt state policy on the matter.

Listening to Wednesday’s oral arguments, it was hard to say with certainty which side will prevail. But given the questions asked by the court’s conservative majority, and the fact that the court had allowed the state’s law to remain in effect during the litigation, the strongest possibility is that the court will side with Idaho. If that happens, pregnant women facing medical emergencies will be more likely to be refused care, and the Biden administration will face a searing reminder of the risks of litigating before the conservative Supreme Court supermajority. Such a loss for the Biden administration could, at the same time,........

© The New York Times