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

The liberal justice smacked down her conservative colleague's take on abortion as emergency health care.

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.”