Supreme Court appears poised to overturn abortion ban in Idaho after draft opinion was 'inadvertently' leaked

Left: An attendee at Planned Parenthood’s “Bans Off Our Bodies” rally for abortion rights holds a sign outside of the Idaho Statehouse in downtown Boise, Idaho, May 14, 2022. (Sarah A. Miller/Idaho Statesman via AP). Center: The U.S. Supreme Court 2011 file photo. (AP Photo/J. Scott Applewhite). Right: A doctor performs an ultrasound scan on a pregnant woman on Aug. 7, 2018, at a hospital in Chicago. (AP Photo/Teresa Crawford)

On Wednesday, the U.S. Supreme Court “inadvertently and briefly uploaded” a document to its website that appears to be a decision allowing emergency abortions to continue in the state of Idaho on a temporary basis.

The posting on the high court’s website was first reported by Bloomberg but Supreme Court spokeswoman Patricia McCabe told NBC News that the decision for Moyle v. United States and Idaho v. United States “has not been released.”

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

There is a “notice” at the top of the document leaked Wednesday that says it is “subject to formal revision before publication.”

Since it is not official, the document does not have the power of law. This is the second time that a ruling related to abortion has leaked from the Supreme Court in as many years. The justices’ decision in Dobbs v. Jackson Women’s Health to overturn the guaranteed right to an abortion was leaked in May 2022 and published first by Politico, as Law&Crime reported . When that ruling was officially issued by the court in June 2022, the reporting lined up with the contents of the decision. An investigation never determined the source of the leak.

For now, it appears the U.S. Supreme Court is poised to allow — by a 6-3 majority — abortions in medical emergencies in Idaho to go forward.

The Biden Administration pushed for that permission at the Ninth Circuit and further argued that federal law known as the Emergency Medical Treatment and Labor Act, or EMTALA, dictates that Medicare-funded hospitals must perform abortions when the heath of the pregnant person is in jeopardy. Though the justices now appear ready to let abortions in Idaho go forward under urgent conditions, the document leaked Wednesday is mum on whether federal law in fact protects the right to abortion in an emergency.

The leaked opinion explains the byzantine path behind the ruling:

During the year that the [District Court] injunction was in place, women in Idaho were able to obtain abortions in medical emergencies. Idaho meanwhile sought to get the injunction lifted. When the en banc Court of Appeals for the Ninth Circuit declined to stay the injunction, Idaho filed an emergency application here. This Court stayed the injunction and granted the State’s petition for certiorari before judgment. With that stay in effect, Idaho could enforce its abortion ban even when terminating a pregnancy was necessary to prevent grave harm to the woman.

The on-the-ground impact was immediate.

To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).

In a passage from the document apparently penned by Justice Ketanji Brown Jackson, the justice remarked that the decision is “not a victory for pregnant patients in Idaho.”

“It is delay. 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,” Brown wrote.

Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, seemed inclined to agree.

Pregnant people “are not out of the woods — not by a longshot,” Kolbi-Molinas said.

“Make no mistake: The Supreme Court had the opportunity to hold once and for all that every pregnant person has the basic right to emergency abortion care, but it appears it failed to do so. As a result, the health and lives of pregnant people across the country will continue to be at risk. Even with a temporary reprieve, the chaos and confusion caused by abortion bans will still prevent doctors from providing appropriate medical care to patients when they need them the most. In fact, several justices indicated that they would allow states to throw doctors in jail for providing emergency abortion care,” she said.

As Law&Crime reported during oral arguments, Solicitor General Elizabeth Prelogar urged the justices to side with the federal government. The Idaho ban had achieved violations of medical health standards nationally, she said.

“Doctors have to shut their eyes to everything except death,” Prelogar said, adding that “no matter where you are in this country, if you have a medical need, you can be stabilized” under law.

Steve Vladeck, a University of Law School professor, told CNN on Wednesday that if the leaked opinion is in fact accurate, it would be a “significant but temporary victory for the Biden administration.”

As it stands, the law in Idaho makes it a felony for doctors to perform an abortion, punishable by up to five years in prison.

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