This hit the internet like a thunderstorm yesterday.
The US Supreme Court is poised to allow abortions in medical emergencies in Idaho, according to a copy of an opinion that was briefly posted on the court’s website.
The decision would reinstate a lower court order that had ensured hospitals in the state could perform emergency abortions to protect the health of the mother. The posted version indicated the majority will dismiss appeals by Idaho and Republican leaders in the state without resolving the core issues in the case.
Bloomberg Law obtained a copy of the opinion that appeared briefly on the court’s website as the justices were issuing two other opinions Wednesday morning. The copy of the opinion isn’t necessarily the final ruling, given that it hasn’t been released.
The Supreme Court’s press office said the opinion in the case had not been officially released. “The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website,” said Patricia McCabe, the court’s public information officer. “The Court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.”
The copy indicates the court is voting 6-3 to lift a stay it previously placed on a federal district court order, with conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting.
The district court order is designed to stay in place while the litigation goes forward. The Supreme Court decision would mean a San Francisco-based federal appeals court can consider the case.
Idaho is one of a handful of states that now outlaw abortion except when the mother’s life is in danger. Doctors and hospital administrators say the state’s law has kept them from treating women with serious health risks even if they have no chance to deliver a healthy baby. Patients instead have been forced to wait days for treatment or be rushed out of state.
See here for my previous update, and here for a copy of the draft opinion, which as noted could differ from the official version (though that was not the case in any substantial manner with Dobbs in 2022).
What this means is that this opinion only affects Idaho, and that the Idaho lawsuit is still ongoing; no decision was made on the merits. That means, among other things, that EMTALA is still subservient to Texas’ abortion ban thanks to the Fifth Circuit. Mother Jones explains.
When a state law conflicts with a federal law, federal law wins. In that sense, this case was an easy one. But when the justices allowed Idaho’s ban to fully take effect in January, it allowed state law to trump federal law. The result, in Idaho, was that providers had to regularly airlift women to other states for emergency abortion care. “This months-long catastrophe was completely unnecessary,” [justice Kentanji Brown] Jackson wrote. “More to the point, it directly violated federal law, which in our system of government is supreme.”
Even though the released decision would let federal law reign once again in Idaho, Jackson points out that the court’s decision not to decide the case on the merits leaves Americans across the country in the same limbo. “The United States is still hamstrung in its ability to enforce federal law while states pass laws that effectively nullify EMTALA’s requirements,” Jackson’s concurrence continues. As a result, patients suffer as doctors and hospitals delay care.
By refusing to decide the merits of the case, the court’s ruling will create a patchwork of enforcement throughout the country. The Fifth Circuit Court of Appeals held in January that EMTALA cannot force states to allow emergency abortions, so the high court’s failure to act would mean that pregnant people living in that circuit—Texas, Louisiana, and Alabama—lack EMTALA’s protections, even as they are returned, at least for now, to Idahoans. “Given the populations” of Texas compared to Idaho, “that’s not a win,” wrote Greer Donley, an abortion law expert at the University of Pittsburgh School of Law. “The Supreme Court’s punt on the emergency abortion case (assuming it’s real) is not even a short-term victory,” she adds. “It’s a short-term mixed bag where many more women are suck in states without health exceptions (only life exceptions, which are failing).”
What’s more, draconian abortion bans are affecting emergency abortion access in states where abortion bans technically provide health exceptions when the life of the mother is not in danger, but where fear of prosecution has nonetheless pushed hospitals to delay care.
“I worry that this will be reported as a big win for abortion rights,” Mary Ziegler, a law professor at UC Davis and a leading abortion historian, noted on X. “The litigation will continue if this is the final decision. The theme of both [abortion] cases this Term is that SCOTUS is kicking the can down the road—and significantly, until after a major election.”
Indeed that seems to be the case. And what’s even more ominous is that when this issue gets back to SCOTUS, it looks like they will allow state restrictions on abortion to overrule EMTALA. Slate explains:
If the draft opinion is accurate, then the Supreme Court has decided that it should not have intervened in the first place. It reached this conclusion by a 5–4 vote: Justices Elena Kagan and Sonia Sotomayor joined with Justices Amy Coney Barrett and Brett Kavanaugh, as well as Chief Justice John Roberts, to dismiss the case as “improvidently granted,” with a one-line per curiam opinion. These justices also voted to lift the stay on the injunction that had protected Idaho patients, and they were joined by Justice Ketanji Brown Jackson on that front. (Jackson would have decided the case against Idaho rather than dismissing it.) The compromise seems obvious: Kagan and Sotomayor agreed to dismiss the case in exchange for a reinstatement of the stay in Idaho.
Barrett wrote to explain her vote, joined by Roberts and Kavanaugh. Her draft concurrence should throw cold water on anyone tempted to call this move a victory for reproductive rights. The justice makes two key points. First, she claimed that Idaho has expanded access to emergency abortions beyond what it initially represented, while the DOJ has narrowed EMTALA’s scope beyond what it initially claimed. She cited concession by Idaho’s attorney during oral argument that the state would allow abortions in an emergency situation in which death is not inevitable, like preeclampsia and preterm premature rupture of the membranes. In light of this shift, Barrett wrote, it’s unclear how state and federal laws conflict, requiring further lower court proceedings. And she voted to lift the stay not because she agrees with the DOJ’s interpretation of EMTALA but because, “even with the preliminary injunction in place, Idaho’s ability to enforce its law remains almost entirely intact.”
Second, and more ominously, Barrett cited an alarming constitutional theory that Idaho brought at the eleventh hour. Congress enacted EMTALA pursuant to the spending clause, under which the federal government may offer (or withdraw) funds with certain strings attached. Idaho alleges that Congress cannot mandate funding conditions that force recipients to violate states’ criminal laws. If that’s true, then even if EMTALA requires emergency abortions when a patient’s life is at risk, it must yield to state bans that criminalize such care. In her draft concurrence, Barrett called this novel theory “difficult and consequential,” urging the lower courts to address it. Her opinion reads like an invitation for Idaho to develop this concept more fully and present it next term, when she—and Roberts and Kavanaugh—will be less prone to the pressures of an impending presidential election and thus likely more amenable to it.
As with any Barrett opinion, a casual reader may find herself nodding along, persuaded by the clear writing and smooth reasoning. But ponder this draft concurrence for more than a few minutes and it falls apart. Yes, the Department of Justice and Idaho have whittled down the scope of their disagreement—but so what? The conflict is still there, in the text of the respective laws and in their potential applications. The Idaho Supreme Court has already provided its definitive interpretation of the state ban, declaring that it permits abortion only when necessary to prevent death, not to protect a patient’s health more broadly. Yet Barrett credited the unfounded assertions of the midlevel state lawyer, Joshua Turner, who argued the case before them. Turner’s legally meaningless thought bubbles will not protect a doctor accused of violating the ban. As Jackson wrote in her partial dissent: “Some of my colleagues latch onto the bald representations of Idaho’s counsel, using them as an escape hatch that justifies our dispensing with having to issue a merits ruling in these cases.”
If Barrett were even remotely inclined to interpret EMTALA as a protection for abortion patients, she would not have performed this casuistic jujitsu. For the Supreme Court’s purposes, all that matters is the existence of a conflict, which even Barrett had to acknowledge while fudging its contours. That conflict gave the justices an opportunity to decide the foundational question: Does EMTALA override the most extreme applications of state abortion bans? SCOTUS could have said yes, then sent the case back down for the lower courts to apply it on the ground. The district court could have sussed out the precise scope of the clash between state and federal laws and delineated the point at which EMTALA supersedes Idaho’s ban. Barrett’s refusal to take this course of action suggests that she is not prepared—indeed, will never be prepared—to enforce EMTALA against the states.
So this is the smallest of wins, on the narrowest of grounds, with an expiration date attached to it. All for the purposes of pushing the question out past the 2024 election. That’s Donald Trump’s Supreme Court at work. TPM and Law Dork have more.
UPDATE: The opinion was officially released today, and it is as it first appeared.