Supreme Court would allow emergency abortions for now, early opinion says

The Supreme Court would allow emergency abortion care in Idaho for now despite the state’s restrictions on the procedure, according to a copy of a not-yet-released opinion posted by Bloomberg Law after it briefly appeared on the court’s website Wednesday.

The decision, which has not been announced, would mean that while litigation makes its way through the courts, hospitals could perform emergency abortions to stabilize patients without being subject to prosecution under Idaho’s abortion ban.

Although the justices did not rule on the merits of the case, their decision amounts to at least a temporary victory for the Biden administration, which has struggled to protect abortion access since the high court overturned Roe v. Wade two years ago.

According to a copy of the opinion, the court’s ruling would reinstate a lower court decision that had allowed emergency abortion care while the case continues. The court had paused that lower court ruling months ago, in an emergency action, before hearing arguments in the matter in April.

It is extremely rare — perhaps unprecedented — for a Supreme Court ruling to be posted on the court’s website before the ruling is issued, and it is possible that the document that was posted could differ from the opinion when it is announced. The momentous decision overturning Roe, known as Dobbs v. Jackson Women’s Health Organization, was also made public early, in that case through a leak to the news organization Politico.

A Supreme Court spokeswoman said Wednesday that the posting of the Idaho decision was accidental, cautioning that no ruling had been released.

“The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website,” spokeswoman Patricia McCabe said in a statement. “The Court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.”

The text posted by Bloomberg shows the justices voting 6-3 with conservative Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch in dissent.

Liberal Justice Ketanji Brown Jackson wrote separately to say the court should have decisively resolved the matter rather than taking the interim step of leaving a lower-court ruling in place while litigation continues.

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she wrote in a partial dissent. “While this court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires.”

Justice Elena Kagan, who also joined the majority but wrote separately, noted that Idaho’s strict ban had forced the state’s largest provider of emergency services to airlift pregnant women out of the state roughly every other week. The court’s decision “will prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman’s health,” wrote Kagan, who was joined in part by Jackson and in full by Justice Sonia Sotomayor.

The White House and Idaho Attorney General Raúl R. Labrador declined to comment on the ruling until it is issued.

The case centers on the nearly four-decade-old Emergency Medical Treatment and Labor Act, known as EMTALA, which requires hospitals that receive federal funds to stabilize or transfer patients needing emergency care.

The Biden administration sued Idaho in 2022, saying the state’s strict abortion ban conflicts with the federal law. Idaho bans almost all abortions and imposes penalties of up to five years in prison on doctors who perform the procedure, with an exception of when “necessary to prevent the death of a pregnant woman.”

The administration said EMTALA requires abortions for pregnant people if needed to address threatening health conditions short of death, such as organ failure or loss of fertility.

A district judge in August 2022 sided with the Biden administration and said that because of the obligation of hospitals under federal law, Idaho doctors cannot be punished for performing an abortion to protect a patient’s health.

Then a three-judge panel of the U.S. Court of Appeals for the 9th Circuit allowed the state to enforce the law — before a full complement of judges on the same appeals court again blocked Idaho’s ability to punish emergency room doctors while the appeals continued.

In January, the Supreme Court agreed to take the case in response to Idaho’s emergency request and said the law could take effect while it heard arguments and deliberated.

Even as a majority of five justices appear to agree that the high court should stay out of the issue for now, the separate opinions suggest differing views about whether the federal law preempts Idaho’s ban in emergency situations.

Justice Amy Coney Barrett, joined by Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, said it was premature for the Supreme Court to intervene at this moment because the positions of the two sides are “still evolving” and the gap between what the government says EMTALA requires in terms of emergency abortion care, and what Idaho says its law permits, had narrowed since the justices agreed to take the case on an emergency basis.

In his dissent, Alito — who wrote the Dobbs decision — agreed with Jackson that the court should not have ducked the issue at hand.

The question of whether federal law preempts state law “is as ripe for decision as it ever will be,” he wrote. “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.”

Alito said EMTALA does not require hospitals to perform abortions in violation of Idaho’s ban — in part because the federal statute does not specifically mention abortion, but does include language directing hospitals to protect an “unborn child” from harm.

Kagan said language was added to the statute by bipartisan majorities of Congress to ensure a pregnant woman could “demand care for her unborn child as well as herself.”

Abortion rights groups on Wednesday criticized the justices for not protecting emergency abortion in their earlier action in the case, and said the briefly posted decision appears to leave major questions about abortion access for another day.

The court “had the opportunity to be clear that the federal EMTALA law protects the right to abortion in an emergency in every state — regardless of a state’s abortion ban — and they chose not to,” Planned Parenthood Federation of America President and CEO Alexis McGill Johnson said in a statement. “Access is still under threat across the country, but for now, this means that patients in Idaho will be able to get the care they need, according to federal law — after seven months of pregnant people suffering in an unnecessary and possibly deadly legal limbo.”

The case is one of two before the high court this term that will shape abortion access nationwide after the dismantling of Roe, which had guaranteed a constitutional right to abortion.

The justices in early June unanimously rejected a challenge to the widely used abortion medication mifepristone, saying the antiabortion doctors who brought the lawsuit did not have standing to do so.

The inadvertent release of the EMTALA opinion by the court Wednesday landed on one of the final days of its term, with about 10 cases not yet announced to the public.

Josh Blackman, a professor at the South Texas College of Law who closely tracks the Supreme Court, said it was virtually unheard of for the court to accidentally release an opinion.

“This was an unforced error,” Blackman said.

Dan Diamond, Justin Jouvenal and Aaron Schaffer contributed to this report.

This post appeared first on The Washington Post

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