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Judges appear to allow emergency abortions in Idaho for now, according to a prematurely published opinion

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WASHINGTON (AP) — The Supreme Court appears to be close to allowing emergency abortions in Idaho when a pregnant patient’s health is at sedate risk, according to a copy of the opinion briefly posted on the court’s website Wednesday and obtained by Bloomberg News.

The document suggests the court will conclude it should not have intervened so quickly in the case over Idaho’s strict abortion ban. By a 6-3 vote, it would reinstate a lower court order that had allowed hospitals in the state to perform emergency abortions to protect the health of a pregnant patient.

Such an outcome would leave the core of the case unresolved. It would also mean that crucial questions would remain unanswered, Judge Ketanji Brown Jackson wrote in a concurring letter.

“Today’s decision is not a victory for pregnant patients in Idaho. It is a delay,” she wrote.

The Supreme Court acknowledged that its publications division accidentally released a document on Wednesday. An opinion on the Idaho case will be released “in due course,” court spokeswoman Patricia McCabe said in a statement.

Conservative justices Clarence Thomas, Samuel Alito and Neil Gorsuch are listed as opponents of the decision.

The ruling may not be the court’s final decision, as the justices’ decision has not yet been officially announced. The decision would mean the case would be heard by the 9th U.S. Circuit Court and could potentially end up back before the justices.

The Supreme Court may hesitate to make a decision on abortion in an election year for substantive reasons – rather than procedural ones, says Greer Donley, a reproductive law expert and professor at the University of Pittsburgh School of Law.

A fresh poll from The Associated Press-NORC Center for Public Affairs Research found that about seven in 10 U.S. adults support providing access to abortion to patients who experience miscarriage or other pregnancy-related emergencies.

The decision would overturn the Supreme Court’s earlier order allowing a fleeting ban on abortion in Idaho, even in medical emergencies. Several women have since had to be airlifted out of the state in cases where abortion is a routine procedure to avoid infection, bleeding and other sedate health risks, Idaho doctors said.

The nation’s top health official, Xavier Becerra, held a scheduled meeting with Idaho doctors and patients in Boise on Wednesday to discuss the state’s strict abortion ban. Sarah Thompson, an Idaho gynecologist, said if a woman’s water ruptures early in pregnancy and the fetus has no chance of survival, she cannot treat the patient by delivering the baby early.

“While there is nothing we can do to save her baby, we can do something to preserve her health and future fertility,” Thompson said.

The American College of Obstetricians and Gynecologists expressed hope that the court “will listen to the scientific evidence and medical experts and ultimately affirm the availability of emergency abortion care to people in all states,” said General Counsel Molly Meegan.

The case began when the Biden administration sued Idaho, arguing that its abortion ban was in conflict with federal health law, which prohibits doctors from performing abortions in scarce emergency situations when their health is at sedate risk to stabilize pregnant patients.

Idaho argued that the ban allows abortions to save the life of a pregnant patient and that federal law does not require expanding the exemptions. The state’s attorney general’s office declined to comment Wednesday.

Katie Daniel, state policy director for Susan B. Anthony Pro-Life America, said an Idaho state court has ruled that women’s lives do not have to be in immediate danger to take action.

Most Republican-dominated states began implementing restrictions after the justices overturned Roe v. Wade two years ago. Idaho is among 14 states that ban abortion at all stages of pregnancy with very few exceptions.

The case will likely come before the Supreme Court again, said Rachel Rebouche, dean of the Temple University Beasley School of Law and an expert in reproductive law. The New Orleans-based 5th U.S. Circuit Court of Appeals ruled in a similar case that federal law did not override an abortion ban in Texas.

While the Supreme Court ruling would allow emergency medical abortions in Idaho, at least for now, Rebouche said, “There are almost 38 million people living in the 5th Circuit. That’s a lot of people whose lives are not going to change at all because of this.”

Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said a decision without explicit guarantees that patients could obtain abortions in medical emergencies would be “catastrophic.”

The number of reports of pregnant women being turned away from U.S. emergency rooms skyrocketed after the Supreme Court struck down the constitutional right to abortion in a 2022 ruling, according to federal documents obtained by The Associated Press.

If the Supreme Court rules in Idaho’s favor, it would create a “world where women would have to lose their reproductive organs,” said Sara Rosenbaum, a professor of health law and policy at George Washington University and an expert on the federal EMTALA law.

The Justice Department’s lawsuit stems from a federal law that requires hospitals that accept Medicare to provide stabilizing care regardless of the patient’s ability to pay: the Emergency Medical Treatment and Labor Act (EMTALA).

Almost all hospitals accept Medicare, so emergency physicians in Idaho and other states with such a ban would also have to perform abortions when necessary to stabilize the situation of a pregnant patient and avoid sedate health risks such as loss of sexual organs, the Justice Department argued.

Idaho argued that the patient’s life exemption also covers dire health conditions and that the Biden administration had misinterpreted the law to circumvent the state’s ban and expand abortion access.

Carol Tobias, chair of the National Right to Life Committee, said her group was pleased that the Justice Department said its arguments apply only in scarce cases.

Doctors have said Idaho’s law makes them afraid to perform abortions, even when the pregnancy poses a sedate risk to the patient’s health. The law requires anyone convicted of performing an abortion to be sentenced to at least two years in prison.

A federal judge initially sided with the Democratic administration and ruled that abortions were legal in medical emergencies. After the state appealed, the Supreme Court allowed the law to take full effect in January.

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Associated Press writers Amanda Seitz and Linley Sanders in Washington, Geoff Mulvihill in Cherry Hill, New Jersey, Devi Shastri in Milwaukee and Hallie Golden in Seattle contributed to this report.

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Follow AP’s coverage of the U.S. Supreme Court at https://apnews.com/hub/us-supreme-court.

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