Supreme Court 'inadvertently' exposes opinion that would restore emergency abortion access in Idaho

Access to emergency abortions in Idaho might soon be restored if a Supreme Court decision briefly posted on its website Wednesday is finalized in the days ahead.

The decision posted online shows that the justices voted 5-4 to dismiss the dispute from their docket, according to Bloomberg News, which first reported the appearance of the opinion .

A court spokesperson confirmed that a “document” related to the Idaho abortion case had been “inadvertently” released, but stressed the decision isn’t yet official. The document has since been removed.

If it becomes official, the decision would restore a lower court injunction that sided with the Biden administration and barred the state from enforcing its broad abortion ban with respect to patients who seek emergency care from hospitals.

The case, Moyle v. United States , is the first time the court has evaluated an individual state’s abortion ban since it overturned Roe v. Wade two years ago.

The case concerns an apparent conflict between state abortion bans and a federal law, the Emergency Medical Treatment & Labor Act, that requires hospitals that take Medicare and Medicaid to provide stabilizing treatment when there’s an imminent threat to a patient’s life or health. The Biden administration argued that EMTALA requires hospitals to perform emergency abortions even in states that ban the procedure.

The 9th U.S. Circuit Court of Appeals had been poised to hear arguments on the conflict before the Supreme Court intervened in January and agreed to take up the issue itself.

But the Bloomberg report said the decision revealed that the high court is poised to dismiss the case as “improvidently granted.” That action, rarely taken by the court, typically signals that the justices, after initially agreeing to resolve a legal dispute, had second thoughts and for some reason chose to dismiss the issue without weighing in on the merits.

In the Idaho case, such a dismissal may appear to be a short-term victory for the Biden administration, because it would reinstate the lower-court ruling against Idaho.

But progressive advocates argued Wednesday that the ruling, if finalized, is far from a win for abortion rights.

Fatima Goss Graves, the president and CEO of the National Women’s Law Center, said in a statement that she’s “furious that this draft appears to leave the door open for the Supreme Court to end emergency abortion care in the coming months or years.”

Indeed, the legal battle over the conflict between federal health protections and state abortion bans is sure to continue. In a separate case, the 5th Circuit Court of Appeals ruled in January that EMTALA does not require doctors in Texas to offer abortions when a patient’s life or health is in jeopardy.

The Supreme Court may eventually have to resolve how EMTALA interacts with state abortion bans, even though the justices have apparently decided to punt on that question this year.

According to the posted opinion, four justices dissented from the court’s decision to dismiss the Idaho dispute: conservatives Samuel Alito, Clarence Thomas, and Neil Gorsuch and liberal Ketanji Brown Jackson.

Alito, joined by Thomas and Gorsuch, flatly rejected the Biden administration’s interpretation of EMTALA. They also said it was improper to override state law due to a federal law that amounts to a condition of accepting Medicare funds.

“The Government's new interpretation of EMTALA is refuted by the statutory text, the context in which the law was enacted, and the rules of interpretation that we apply to Spending Clause legislation. We should reject the Government's interpretation and put that matter to rest,” Alito wrote.

Jackson, the sole liberal dissenter, said the high court was wrong to back away from resolving the case.

“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” she wrote. “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. As the old adage goes: The Court has made this bed so now it must lie in it.”

“Today's decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson added.

The court’s two other liberals, Justices Elena Kagan and Sonia Sotomayor, concurred in the decision to effectively dump the case, according to the opinion. However, they made clear they agreed with the Biden administration’s view that EMTALA does require hospitals to provide emergency treatment that requires terminating a pregnancy, even if state law prohibits it.

Idaho doctors have for months been operating under the near-total abortion ban, including in emergencies, because the Supreme Court put a stay on the district court’s injunction that sided with the Biden administration and said the state must comply with EMTALA.

Several times during oral arguments, justices referenced reports of Idaho women being airlifted to a neighboring state while miscarrying, asked to wait until their health deteriorated to a crisis, or suffering permanent harm to their health and fertility after being denied an abortion.

The Supreme Court is in the height of its decision season and released opinions Wednesday in two other cases. One ruling effectively nixed a lawsuit accusing the Biden administration of censoring conservative voices through its dealings with social media companies. The other reined in the scope of a federal law aimed at punishing corruption by state and local officials.

During a court session when those opinions were announced Wednesday morning, the justices gave no indication they’d taken action on the Idaho case. Court officials who distributed paper copies of the opinions to journalists also said no more were expected Wednesday.

Medical and legal experts caution that even a Supreme Court ruling upholding the protections of EMTALA in place wouldn’t resolve the current chaos on the ground in states with abortion bans.

Doctors practicing under abortion restrictions in many states say the vague wording of their laws — coupled with the threat of prison time and the loss of their medical license for any violations — have created a chilling effect, making them afraid to treat patients even when they believe they have the right to do so.