Criticizes court’s approach

Jackson criticizes court’s approach and stresses real-world consequences of Idaho’s abortion law 

From CNN's Devan Cole 

Although she did not publicly dissent to the per curiam opinion, Justice Ketanji Brown Jackson was nevertheless highly critical of the court’s order avoiding a final decision in the abortion case.

It was particularly wrong, Jackson said, because the court had for months allowed Idaho’s strict abortion law to remain in effect.  

“It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened,” Jackson wrote.

“As the old adage goes: The Court has made this bed so now it must lie in it — by proceeding to decide the merits of the critical pre-emption issue this case presents.”  

When the Supreme Court said earlier this year that it would hear the case, it paused a lower-court order that had permitted the federal regulations to remain in effect while legal challenges played out. 

“Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects. The majority opts, instead, to dismiss these cases,” Jackson wrote. “But storm clouds loom ahead.”

The liberal justice said she wanted the court to decide the case in full this term.   

Jackson’s concurrence also stressed the real-world impact of Idaho’s abortion law and what the court’s earlier order meant for women in the state, with the justice saying that for the past several months, “Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of ldaho.”  

“As a legal matter, this Court’s stay meant that unless a doctor could actually say that the abortion was necessary to prevent a patient’s death, that doctor could no longer provide abortion care that she viewed as reasonably necessary to keep a patient from losing her uterus, going into organ failure, or avoiding any number of other serious health risks,” she wrote.