++The Trumpiest court in America just tried to neutralize a federal law requiring most hospitals to provide medically necessary abortions. +
++On Tuesday, a notoriously right-wing federal appeals court attempted to rewrite a federal law that, among other things, requires most US hospitals to provide abortions to patients who are experiencing a medical emergency if a doctor determines that an abortion will stabilize the patient. +
++The case is Texas v. Becerra, and all three of the United States Court of Appeals for the Fifth Circuitâs judges who joined this opinion were appointed by Republicans. Two, including Kurt Engelhardt, the opinionâs author, were appointed by former President Donald Trump. +
++The case involves the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute requiring hospitals that accept Medicare funds to provide âsuch treatment as may be required to stabilize the medical conditionâ of âany individualâ who arrives at the hospitalâs ER with an âemergency medical condition.â (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.) +
++EMTALA contains no carve-out for abortion. It simply states that, whenever any patient arrives at a Medicare-funded hospital with a medical emergency, the hospital must offer that patient whatever treatment is necessary to âstabilize the medical conditionâ that caused the emergency. So, if a patientâs emergency condition can only be stabilized by an abortion, federal law requires nearly all hospitals to provide that treatment. (Hospitals can opt out of EMTALA by not taking Medicare funds but, because Medicare funds health care for elderly Americans, very few hospitals do opt out.) +
++This federal law, moreover, also states that it overrides (or âpreempts,â to use the appropriate legal term) state and local laws âto the extent that the [state law] directly conflicts with a requirement of this section.â So, in states with sweeping abortion bans that prohibit some or all medically necessary abortions, the state law must give way to EMTALAâs requirement that all patients must be offered whatever treatment is necessary to stabilize their condition. +
++It is important to emphasize just how little EMTALA has to say about abortion. EMTALA does not protect healthy women who wish to terminate their pregnancies. Nor does it preempt any state regulations of abortion, except when a patient is experiencing a medical emergency and their doctors determine that an abortion is the appropriate treatment. +
++But when an emergency room patient presents with a life-threatening illness or condition â or, in the words of the EMTALA statute, that patient has a condition that places their health âin serious jeopardy,â that threatens âserious impairment to bodily functions,â or âserious dysfunction of any bodily organ or partâ â then Medicare-funded hospitals must provide whatever treatment is necessary. +
++The Texas case, in other words, asks whether a state government can force a woman to die, or suffer lasting injury to her uterus or other reproductive organs, because the stateâs lawmakers are so opposed to abortion that they will not permit it, even when such an abortion is required by federal law. +
++And yet, despite the fact that the EMTALA statute is unambiguous, and despite the fact that this case only involves patients whose life or health is threatened by a pregnancy, three Fifth Circuit judges told those patients that they have no right to potentially lifesaving medical care. +
++The Fifth Circuit had no business hearing this case in the first place +
++This case never should have been heard by any federal court. Thatâs because it involves a fake dispute over a nonbinding document produced by the Biden administration. +
++Federal agencies sometimes issue binding regulations, which have the force of law, often impose new legal restrictions on private parties, and may be challenged in federal court. +
++The government also sometimes releases a nonbinding document, often referred to as a âguidance,â which explains how the federal government understands a particular law. One important difference between these nonbinding guidances and more formal announcements of new regulations is that a guidance does not impose any new legal obligations on individuals or businesses. +
++In 2022, the Department of Health and Human Services issued such a document âto restate existing guidance for hospital staff and physicians regarding their obligations under the Emergency Medical Treatment and Labor Act (EMTALA), in light of new state laws prohibiting or restricting access to abortion.â This guidance explained that EMTALA still requires most hospitals to provide patients experiencing a medical emergency with âstabilizing treatment within the capability of the hospitalâ â including, in appropriate cases, an abortion. +
++As the Fifth Circuit has acknowledged in the past, âan agencyâs actions are not reviewableâ by a federal court âwhen they merely reiterate what has already been established.â Similarly, the Fifth Circuit has also conceded, in cases that donât involve abortion, that federal courts typically may not hear a lawsuit challenging a federal agencyâs action when the agency âmerely expresses its view of what the law requires of a party, even if that view is adverse to the party.â +
++So, when Texas and two anti-abortion groups filed this lawsuit, which challenges HHSâs 2022 guidance, the case should have immediately been tossed out. +
++Nevertheless, Engelhardt and his fellow Fifth Circuit judges used this fake dispute over a nonbinding document as an excuse not just to hear the Texas case, but to declare that HHSâs reading of EMTALA is wrong and that the statute must be read to exclude abortions. This error alone is sufficient reason for the Supreme Court to step in and toss Engelhardtâs decision in the garbage. +
++How Engelhardt justified rewriting EMTALA +
++Engelhardtâs opinion is surprisingly brief for such a consequential decision, and for one that reads a straightforward federal law in such a counterintuitive way. The section of the opinion laying out Engelhardtâs unusual reading of this federal law is only about eight pages long â yet it contains at least three separate legal errors. +
++For starters, Engelhardt places an enormous amount of weight on his claim that the EMTALA statute âdid not explicitly address whether physicians must provide abortions.â He is correct that the word âabortionâ does not appear in the EMTALA statute, but so what? Rather than itemizing every possible medical procedure that a doctor may need to perform during a medical emergency, EMTALA contains a blanket statement that hospitals must provide âsuch treatment as may be required to stabilize the medical conditionâ that caused a patientâs emergency. +
++The EMTALA statute also does not use words like âappendectomyâ or âbowel resection.â That doesnât mean that a patient who needs their appendix removed to treat a medical emergency or whose life is threatened by an intestinal blockage must simply lie in their hospital bed and suffer until they die. +
++Similarly, Engelhardt relies on a provision of federal Medicare law that says EMTALA should not be read âto authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.â But there are two problems with reading this provision to create an abortion exception to EMTALA. +
++One is that this provision only applies to âany Federal officer or employee.â But, as the Justice Department explained in a recent brief to the Supreme Court, âEMTALAâs stabilization obligation was enacted by Congress, not imposed by a âFederal officer or employee.ââ +
++The purpose of this provision is to prevent federal officials from second-guessing medical decisions made by doctors and their patients. But neither the text of EMTALA itself nor HHSâs guidance document interpreting EMTALA claims that doctors must perform abortions when they deem those abortions unnecessary. The law simply provides that, when a doctor does determine that an abortion is medically necessary and the patient consents to that treatment, then the hospital must provide it. +
++Engelhardt also points to a few provisions of EMTALA that require hospitals to stabilize a pregnant patientâs âunborn childâ if the fetus is also experiencing a medical emergency. He claims that this language ârequires hospitals to stabilize both the pregnant woman and her unborn child,â thus precluding an abortion. (Engelhardt does not appear to recognize that there are some cases where a patient cannot be saved unless their pregnancy is terminated.) +
++In any event, this apparent tension between a pregnant patientâs survival and that of the fetus is resolved by a provision that lays out hospitalsâ precise obligations under EMTALA. A hospital is not required to perform an abortion against a patientâs wishes. Nor does it require the hospital to choose who lives and who dies in a sad case where one will die no matter what. +
++Instead, EMTALA states that a hospital meets its obligations if it âoffersâ the patient stabilizing treatment and informs that patient âof the risks and benefits to the individual of such examination and treatment.â So, in a case where a patient is forced to choose between an abortion, which will stabilize their own condition, or a treatment that would save the fetus but leave the pregnant patient at risk, EMTALA requires a hospital to offer the patient either treatment and to explain the terrible choice facing them. And then it requires the hospital to honor the patientâs choice. +
++In any event, there are some signs that the Supreme Court, even the same Court that recently overruled Roe v. Wade, will reject Engelhardtâs twisted reading of the EMTALA statute. Last October, the Ninth Circuit left in place a trial court decision holding that EMTALA means exactly what it says, and thus hospitals in Idaho must provide emergency abortions. +
++The Ninth Circuitâs decision is currently before the Supreme Court on its âshadow docket,â but the justices have sat on the case without deciding it for more than a month. Thatâs a sign that the most stridently anti-abortion justices may not have the votes to rewrite the EMTALA statute to exclude abortions. +
++Moreover, the fact that lower court judges disagree on whether EMTALA means what it says is a sign the Supreme Court is likely to review the Fifth Circuitâs decision. The justices frequently hear cases that divide lower courts, especially when two federal circuit courts disagree. So Engelhardt is unlikely to have the final word on whether states can ban medically necessary abortions. +
++Solving the congenital syphilis crisis means investing in rural maternity care. +
++In mid-July, in the basement of Monument Healthâs flagship hospital in Rapid City, South Dakota, neonatologist Kimberly Balay searches her phone for a photograph. The image is of a slide from a presentation she makes often, but wishes she didnât have to: a graph that shows her hospitalâs congenital syphilis cases rocketing up over just the past three years. +
++In 2018, Balayâs neonatal intensive care unit (NICU) saw its first case in 10 years. Then, it saw four cases a year in 2019 and 2020. Afterward, the curve shoots skyward. In 2021, there were 19 cases; in 2022, 32. âWe pretty much constantly had somebody in our NICUâ with the infection, she says. +
++As medical director of one of only three NICUs in South Dakota, Balay knew this had to represent a much bigger problem. She talked about it to anyone who would listen â namely, other health care providers, city officials, tribal decision-makers. âPeople were always just like, yeah, I canât believe that â syphilis? No, we got rid of that. And Iâm like, no, no, itâs here. Itâs in South Dakota. Itâs affecting my babies,â she said. +
++Until the early 2010s, women only rarely got infected with syphilis. But in 2012, womenâs infection rates began to tick upward, and rose more than 700 percent across the US according to estimates from the Centers for Disease Control and Prevention (CDC). +
++At the same time, congenital syphilis cases â in-utero infections that have high rates of disability and death â also began to lurch out of control throughout the US. Transmission has been particularly intense in South Dakota. Last year, the state had the highest rate of sexually transmitted syphilis infections, and the seventh highest congenital syphilis rate. +
++Nationally, infections in both adults and infants have increased faster in Native Americans than in any other racial or ethnic group, especially over the course of the pandemic â a trend also mirrored in South Dakota. But the concentration of cases in this group âhas nothing to do with the color of their skin or their race,â said Balay. âItâs a disease of access.â +
++Many providers like Balay see an obvious link between rising congenital syphilis rates and sparse access to obstetric care (i.e., care for pregnant people, also called maternity or prenatal care). Thatâs largely because, historically, prenatal care is where syphilis transmission to a fetus has been interrupted. Testing is standard in prenatal care, and all but eight states require syphilis testing during pregnancy. +
++The problem is simple, as Balay explains. âThere just is not enough obstetric care,â she said. And as prenatal care becomes increasingly scarce, so do opportunities to catch and treat syphilis. +
++Balay is not alone in thinking that scarcity helps explain whatâs happening with congenital syphilis, especially among Indigenous Americans. +
++In a recent CDC report, 37 percent of US babies with syphilis were born to parents who didnât get timely syphilis testing during pregnancy. But that number was higher, 47 percent, when the parents were American Indian. And most of those parents who didnât get timely testing didnât get any prenatal care at all. +
++In rural states, increasingly inadequate maternity care access is making intensified mother-to-child syphilis transmission all but inevitable. That puts Indigenous women and their newborns at especially high risk. +
++Why maternal care access is worse for Indigenous mothers +
++All pregnant people in rural areas are at a geographical disadvantage when it comes to getting care. About a quarter of rural obstetric units have closed since 2011. According to a 2022 March of Dimes report on maternity care deserts â US counties without adequate obstetric providers or birth centers â two out of every three such deserts are rural. +
++Twenty-two percent of Indigenous Americans live in rural areas, a higher proportion than any other racial or ethnic group. However, Indigenous Americansâ access to maternity care is often worse than that of other rural residents. In a study conducted by researchers at the University of South Carolinaâs Rural and Minority Health Research Center, rural Indigenous communities were farther from hospital-based obstetric units than any other rural communities. Additionally, more than half were at least 30 miles away from the nearest obstetric unit. (Although prenatal care often happens outside a hospital setting, providers are most likely to practice near an obstetric unit.) +
++Amplifying that disadvantage is the fact rural Indigenous people are less likely to own a vehicle than other rural Americans, and are twice as likely to be carless as their white peers. +
++Transportation is an immense and persistent problem for people trying to access prenatal care at the Kyle Health Center on the Pine Ridge reservation, said Dayle Knutson, a registered nurse who is the Indian Health Serviceâs (IHS) chief nurse officer for the Great Plains area. The reservation is vast, covering about 2.1 million acres of land; Kyle is about 50 miles from the big IHS hospital in Pine Ridge. The clinic has a full-time midwife who provides obstetric care. However, many patients canât physically get to the clinic due to a lack of transportation. +
++The risk to South Dakotaâs mothers is concentrated in its rural areas, and especially on its reservations in the western part of the state. The March of Dimes defines a broad swath of counties statewide as maternity care deserts. However, as can be seen in the below map, women in the western part of the state, especially those in counties containing reservations, travel further to get care, partly due to less well-developed road systems. +
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March of Dimes
++Although being able to physically access a prenatal care provider is an obvious barrier to getting prenatal care, another more subtle obstacle may also affect Indigenous Americans more than others. Substance use disorders have caused disproportionate misery in Americaâs Indigenous communities, and many US states criminalize drug use during pregnancy. This leads many of the women whoâd most benefit from prenatal care to avoid it. +
++How sparse maternal care creates the conditions for syphilis +
++South Dakota offers a case study in how sparse maternal care creates challenges to stopping a congenital syphilis outbreak. +
++The state lost many of its rural labor and delivery sites decades ago, as decreasing numbers of births in these areas meant these sites werenât making enough money to stay open, said Shelly Ten Napel, CEO of the Community HealthCare Association of the Dakotas, a nonprofit organization representing primary care providers. âItâs just really hard to sustain [labor and delivery services] at a high quality level if you donât have the volume,â said Ten Napel. +
++At the same time, obstetric care became highly specialized, making it harder for the family care practitioners who used to deliver babies to stay up-to-date on current practices. As a result, many of these providers dropped pregnancy care from their repertoires. +
++The Affordable Care Actâs Medicaid expansion in 2010 made it easier for rural hospitals to stay open. But a lot of South Dakotaâs hospital closures happened before its passage. +
++In her office across town from Balayâs NICU, OB-GYN Rochelle Christensen said the dearth of providers means her âpatients drive three hours for their prenatal care sometimes.â There are now no labor and delivery services between the midpoint of the state and the hospital where she delivers babies in Rapid City, near the western edge of the state. +
++Many Indigenous patients in the western part of the state used to get free obstetric care at IHS sites, located on or near reservations. (Free care was guaranteed to Indigenous people as a treaty right to compensate for centuries-old injustices.) But plagued by underfunding and difficulty recruiting providers, IHS facilities have progressively closed many of their childbirth services. In testimony provided during a 2021 federal inquiry into South Dakotaâs Indigenous maternal mortality crisis, tribal members described low standards of care in IHS maternity services, and closures or funding changes at IHS facilities that have forced local women to drive hundreds of miles to get routine prenatal care. Overall, according to reporting in USA Today, only nine IHS facilities in six states offered childbirth services as of summer 2022. +
++Instead of going to IHS facilities, patients from reservations often come to Rapid City, said Balay, to get their prenatal care from a certified nurse midwife at the tribally owned Oyate Health Center. But those providers are now themselves overloaded: In July, CDC epidemiologists investigating the stateâs syphilis outbreak noted the health centerâs two midwives were together caring for more than 200 patients, a heavy burden. +
++At the end of the CDCâs two-week investigation, its team presented their findings to more than 130 tribal and state public health staff. Among the most important drivers of the stateâs syphilis outbreak were the scarcity of maternal health care and the lack of transportation, said the presenters. +
++To overcome these barriers, the Kyle Health Center on the Pine Ridge Reservation employs public health nurses who see patients in their home or at their workplaces â âwherever they agree toâ â for visits at least three times during their pregnancy, said Knutson. And just a few months ago, IHS implemented policies that permit those nurses to provide syphilis treatment with penicillin in the field. But even for them, itâs sometimes challenging to locate patientsâ homes on the vast reservation. +
++What could help solve the maternal care crisis â and what stands in the way +
++One of the most promising solutions to South Dakotaâs maternal care scarcity problem got a boost last year when the stateâs voters approved an initiative to expand Medicaid beginning in early 2023. The expansion means more than 52,000 of the stateâs residents are newly insured, which shifts the costs of their care from IHS to a better-funded federal program. It also means that hospitals caring for these patients will get paid more for the care they provide to the thousands of tribal residents newly covered by Medicaid. And most importantly to patients, expansion will make it more financially feasible to get the care they need. +
++All of that is good for improving IHSâs solvency because it increases what it recoups from insurance payments, said Ten Napel, which could eventually lead to broader maternity care availability in Indian Country. +
++While the birth rate is relatively low in most of the state, it is high on many of its reservations because their populations skew younger. If pregnant people are insured by Medicaid and they get care at IHS before, during, and after they give birth, IHS can collect payment from Medicaid for their care â which amounts to better compensation than IHS would receive from the federal government for uninsured patients. +
++Compared with health facilities in other parts of the state with lower birth rates, facilities in South Dakotaâs Indian Country stand to earn more from the maternity care they already provide. And those earnings would allow IHS to invest in providing even more maternity care. +
++Still, other state policies may make it difficult to reexpand the stateâs rural prenatal care availability. When the constitutional right to abortion was overturned nationally last June, South Dakotaâs trigger law banning abortion took effect immediately afterward. These types of laws threaten to widen maternity care deserts, said Tracey Wilkinson, a pediatrician who specializes in reproductive health issues at Indiana Universityâs medical school, by scaring away providers who fear being unable to practice the full scope of medical care. âWe are seeing the experts in maternity care, such as OB-GYN and maternal-fetal medicine doctors, leave â theyâre just leaving states,â she said. +
++According to reporting by nonprofit news outlet South Dakota Searchlight, many of the stateâs pregnancy care providers feel trapped by the law, and newly trained OB-GYNs say the restrictions have led them to reconsider establishing practices in the state. +
++OB-GYN Heather Spies, whose Sioux Falls practice is in the eastern part of South Dakota, pushed back against that idea, and said providers can work within the boundaries of the law to provide necessary care to pregnant people. So far, she said, she hasnât seen anyone stop practicing in the state because of the restrictions. Itâs as yet unclear what effects these changes will have on the stateâs prenatal care deserts. And it also remains to be seen how improvement in care will impact syphilis transmission. +
++Tribes could mount a bigger response â but face roadblocks +
++During debt ceiling negotiations earlier this year, Congress slashed the last two years of a five-year grant that supports state disease intervention specialists. These employees are responsible for the bulk of South Dakotaâs syphilis contact tracing, and defunding their work may mean less outbreak control, and more syphilis spread. +
++Tribes themselves could play an important role in containing syphilis outbreaks on reservations. But theyâre not able to because for years, the state has declined to tell tribal public health authorities who in their communities needs treatment and contact tracing. +
++Thereâs some hope in this regard: A state health department representative told Vox in December that the agency is in the process of negotiating a data-sharing agreement with tribal public health leadership. If this happens, tribes could potentially help transport pregnant people from remote areas to get testing and treatment, or could treat them in their homes, and could design programs to track and stop chains of transmission within tribal communities. +
++Balay has other ideas for how South Dakota could address both maternal care scarcity and the need to stop syphilis spread: Mobile units, for example, could provide much-needed prenatal care and treatment for pregnant people with syphilis in the most isolated areas of the state. Support for that âcould come from, I donât know, a state with a surplus of $96.8 million this year,â she said, referring to an Instagram post by Gov. Kristi Noem, which boasted of the surplus earlier this year. +
++Whatever the details, urgently finding a solution aligns with both the priorities Balay feels the state should have, and the priorities its leaders says it has. âWe are a state that prides itself on small government. However, the purpose of government is to protect its citizens,â she said. +
++âWe are a very pro-life state. This is a life-and-death matter.â +
++This story was reported as part of an Association of Health Care Journalists fellowship, supported by the Commonwealth Fund. +
++The Court was acting to protect Israeli democracy. But it may also have sowed the seeds of a future crisis. +
++If it werenât for the war, the latest ruling by Israelâs Supreme Court would be the biggest news in the country in quite some time. +
++The ruling, released on New Yearâs Day, annulled the single biggest piece of legislation passed by Israeli Prime Minister Benjamin Netanyahuâs far-right coalition. The Courtâs reasoning fundamentally changes the balance of power in Israelâs democracy â so fundamentally, in fact, that some members of the elected government have vowed not to abide by it. If that happens, Israel will be thrown into a full-blown constitutional crisis. +
++About a year ago, Netanyahu proposed a sweeping overhaul to Israelâs judiciary â one that would, in effect, put it under his personal thumb. Mass protests succeeded in blocking most of the overhaul. Only one plank â curtailing the power of the courts to overturn government policy â actually became law, an amendment to Israelâs âBasic Laws,â the closest thing the country has to a constitution. This is the law that was just overturned by the Supreme Court. +
++In doing so, the Court came to two key conclusions. First, that it has the general power to overturn Basic Laws â a power it had never deployed before. Second, that this new Basic Law was threatening enough to Israeli democracy that the court was justified in overruling it. +
++In peacetime, a ruling this epochal would transform Israeli politics, reorienting everything around the question of the courtâs new claim to power and (plausible) claim to be saving Israeli democracy. +
++But with the country enmeshed in an existential war in Gaza, the domestic reaction to the courtâs ruling is far less explosive than it would be otherwise. Whether this lasts â or whether Israel erupts into a domestic political crisis to match its current international peril â is far from clear. +
++Why Israelâs Supreme Court just made history +
++At the beginning of 2023, Netanyahu had just returned to power after roughly one year in opposition. His new coalition, the most far-right in Israeli history, was united around one cause: reining in an independent Supreme Court that got in the way of their ambitions. In January, Justice Minister Yariv Levin unveiled a judicial reform package that would impose sweeping political controls on the judiciary â granting the Knesset, Israelâs parliament, new powers to appoint justices and even overrule Supreme Court decisions by a simple majority vote. +
++Leading Israeli and international legal observers saw the plan as a naked power grab. Ruling Israeli coalitions are already extremely powerful by international standards: the country lacks checks and balances like a formal constitution, a Senate-style upper house, a federal system, or a separately elected chief executive. The judiciary is pretty much the only check on what majorities do: if Netanyahu succeeded in neutering it, he would be free to pursue his demonstrably authoritarian political agenda without constraint. +
++In response, Israelis filled the streets in unprecedented numbers, protests that succeeded in blocking the initial push to overhaul the court in March. So Netanyahu turned to what scholars of democratic backsliding call âsalami slicingâ: splitting the bill into pieces and passing them in sequence rather than all at once. +
++Ultimately, Netanyahu only managed to get one of these pieces passed before the October 7 attack by Hamas forced him to put off the push indefinitely â the Basic Law amendment that the Supreme Court just overturned. +
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Mostafa Alkharouf/Anadolu Agency/Getty Images
++This new law eliminated courtsâ power to overturn decisions by Israelâs Cabinet or its ministers that they find to be âextremely unreasonable,â a vague-sounding standard that has a more technical meaning in Israeli law. In the simplest terms, the courts used this doctrine to block policies when the government canât prove that its decisions were made according to some basic standards of fair and just policymaking. +
++To be clear, this âreasonablenessâ standard is not used to review legislation. Itâs a principle of administrative law, meaning itâs used to assess policy decisions by members of the executive branch â primarily, the prime minister and Cabinet members. Last January, for example, the court ruled that it would be âextremely unreasonableâ for Netanyahu to appoint Aryeh Deri, a legislator convicted on tax fraud charges, to lead the interior and health ministries. +
++Reasonableness is a relatively common judicial principle internationally. It is especially useful in systems like Israelâs, that have few checks on arbitrary exercises of power by government officials. It is not without its flaws; the potential for judicial overreach is obvious. But instead of trying to limit reasonableness, the new Basic Law abolished it altogether â taking away one of the principal judicial tools for checking executive misconduct. +
++According to Israelâs Supreme Court, the danger was so huge that it justified an unprecedented step: overturning a Basic Law by judicial fiat. +
++âIn rare cases in which the beating heart of the Israeli form of constitution is harmed, this court is authorized to declare the invalidation of a Basic Law that has in some way exceeded the Knessetâs authority,â former Israeli Supreme Court President Esther Hayut wrote in her ruling (despite having recently retired, Hayut heard the case and thus was empowered to rule on it). +
++This is hardly an obvious point. Typically, Basic Laws function like a constitution in Israel: when overturning legislation, the Court will frequently cite them as the legal foundation for their rulings. But in this case, 12 justices (out of 15) agreed that the Court can overturn them by appealing to Israelâs foundational identity as a Jewish and democratic state. If any law, even a Basic one, poses a serious enough threat to Israeli democracy, then the Court is justified in striking it down. +
++The justices were more split on whether the abolition of reasonableness was such a dire case, with a narrow 8-7 majority ruling that it was. +
++âIn my view, it is not possible to square the amendment to the Basic Law on the Judiciary and the principle of the separation of powers and the principle of the rule of law, which are two of the most important characteristics of our democratic system,â Hayut wrote. âSuch a violation at the very heart of our founding narrative cannot stand.â +
++Could Israel be heading for a second crisis? +
++With all that background in mind, you can see why this ruling is such a bombshell. The Court has just asserted a major new power and used it to rule against the government on the issue that dominated Israeli politics for the majority of last year. Under normal circumstances, this ruling would define the course of Israeli politics for the coming months. +
++But at the same time, thereâs a general sense that the government wonât do anything about it as long as the war is going on. The governmentâs rhetoric, while highly critical of the court, has (somewhat cynically) blamed the court for harming wartime unity rather than calling for an immediate policy response. Even the most extreme far-right responses, such as a legislatorâs tweet equating the Supreme Court to Hamas and Hezbollah, called for action against the Court after wartime. +
++What such action would look like is straightforward: a simple refusal to acknowledge the Courtâs authority to overturn a Basic Law. +
++When the Court first agreed to take up a challenge to the new Basic Law after its summer passage, Netanyahu suggested he might not accept the legitimacy of a ruling overturning their ban on reasonableness. After the decision on Monday, Justice Minister Levin warned that the Courtâs ruling âwould not stay our handâ â seemingly a warning that his government would reject any court ruling that declares one of its future decisions as âunreasonable.â +
++This is the textbook definition of a constitutional crisis: a situation where two different legal authorities do not agree on what the law is or how to resolve their disagreement. Were it to happen, it would be an existential threat to the survival of Israelâs political system â a crisis the country might not be able to manage in peacetime, let alone during war. +
++Luckily, there is a reasonable chance it may not come to that. +
++The ban on reasonableness review, and the judicial overhaul in general, has long been unpopular. There is almost no chance the government will press the issue during the war with Hamas, and it may not be able to afterward. The Israeli public largely blames the government for failing to prevent Hamasâs attack on October 7, and its poll numbers are plummeting. The Economist reports that, seeing this polling collapse, some members of Netanyahuâs Likud party are privately admitting that they no longer have the juice to pick a fight over the Supreme Court. +
++Whether that will remain true, however, is an open question. +
++The future of Israeli politics will depend heavily on how the war ends and what the world looks like afterward. With Israel settling in for extended fighting in Gaza, we canât be sure what the political climate will look like in the coming months. Developments on the ground â not just on the war front, but also in Netanyahuâs ongoing corruption trial â could well prompt the prime minister to return to his assault on the judiciary. +
++Right now, all we can be sure of is that the Court has just fired a major volley in a long-running war over Israeli democracy â one that will surely shape the future of that democracy for years to come. +