Supreme Court Justice Elena Kagan Targets Samuel Alito Directly In Abortion Case

Supreme Court Justice Elena Kagan took direct aim at her conservative colleague Justice Samuel Alito in an opinion Thursday on Idaho’s near-total abortion ban, writing that Alito’s dissenting opinion “requires a brief response.”

The Idaho case ended up being an unusual one: The court dismissed it as being “improvidently granted” without ruling on the actual issue of abortion. The upshot was a slight win for reproductive rights advocates, allowing emergency abortions in the state of Idaho — for now.

While the decision itself was very brief and unsigned, several of the justices provided opinions that offered windows into their thinking.

Originally, the court was asked to weigh in on an Idaho law that prohibits all abortion unless it is necessary to keep the pregnant patient alive; Idaho’s law makes no exceptions for preserving the pregnant patient’s general health or fertility. But a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), says hospitals that receive federal Medicare funding must provide care to prevent any grave health consequence for the patient, not just to preserve the individual’s life.

Alito wrote that the question of whether EMTALA “sometimes demands that hospitals perform abortions” was actually “an important and unsettled question.”

Kagan disagreed with this characterization, writing in effect that abortion is legitimate health care.

“Justice Alito’s dissenting opinion requires a brief response. His primary argument is that although EMTALA generally obligates hospitals to provide emergency medical care, it never demands that they offer an abortion — no matter how much that procedure is needed to prevent grave physical harm, or even death,” Kagan wrote.

“That view has no basis in the statute,” she said. “EMTALA unambiguously requires that a Medicare-funded hospital provide whatever medical treatment is necessary to stabilize a health emergency — and an abortion, in rare situations, is such a treatment.”

Alito is well-known for his opposition to abortion, having authored the 2022 Supreme Court decision that overturned Roe v. Wade and the nationwide right to abortion care. His frequent allies, Justices Clarence Thomas and Neil Gorsuch, joined in his dissenting opinion that appeared to suggest Idaho’s state law should be respected.

Justice Ketanji Brown Jackson also seemed to take aim at her conservative colleagues, writing that some of them “latch onto the bald representations of Idaho’s counsel.”

Jackson, in contrast, would not have dismissed the case at all. She would have settled the issue of abortion, pointing to how the legal clash has led to chaotic situations in which pregnant Idaho patients are airlifted to hospitals in other states for health care.

“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,” she wrote of the court’s attempted intervention.

“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,” Jackson said.

But as Justice Amy Coney Barrett put it, since the court said it would take up the case, “the parties’ litigating positions have rendered the scope of the dispute unclear, at best,” seemingly justifying the court’s decision to drop it.