The Supreme Court seems poised to temporarily allow emergency abortions in Idaho when a woman’s health is at risk, according to a copy of what appeared to be the opinion that showed up briefly on the court’s website on Wednesday.
The unsigned opinion dismissed the case as “improvidently granted,” according to the 22-page document, which was published by Bloomberg News. Such a decision would reinstate a ruling by a lower federal court that had paused Idaho’s near-total ban on abortion and said hospitals in the state could perform emergency abortions if necessary to protect the health of the mother.
It was unclear whether the document was final, and a spokeswoman for the court said only that a decision in Moyle v. United States and Idaho v. United States would eventually be released. The cases center on whether a federal law requiring emergency care for any patient overrides Idaho’s strict abortion ban, which outlaws the procedure with few exceptions unless the woman’s life is in danger.
“The court’s publications unit inadvertently and briefly uploaded a document to the court’s website,” said the spokeswoman, Patricia McCabe. “The court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.”
The split laid out in the unsigned opinion, labeled “per curiam,” meaning “by the court,” was essentially 6 to 3, with Justice Ketanji Brown Jackson writing a partial agreement and a partial dissent. She wrote that she would have found that a federal law protecting emergency abortion care overrides Idaho’s strict ban, adding that she believed the Supreme Court should immediately consider the substance of the case, rather than sending it back to the lower court.
The liberal justices, along with Justices Amy Coney Barrett and Brett M. Kavanaugh and Chief Justice John G. Roberts Jr., all wrote or joined in concurring opinions. Three of the court’s conservatives, Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch, dissented.
The document posted online was dated Wednesday. But the court announced only two rulings that morning. Neither involved abortion.
If the document reflects a final decision, it would be the second time this term that the justices have deflected ruling on the merits of abortion. The opinion on Wednesday suggested that the justices would not rule on the substance, but simply say that women could retain access to emergency abortions as the case works its way through the courts.
In her concurrence, Justice Elena Kagan said the court’s action “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.”
In her view, she added, the federal law at issue, known as the Emergency Medical Treatment and Labor Act, or EMTALA, “unambiguously requires” that hospitals receiving federal funding provide whatever medical treatment is necessary to stabilize a patient.
Justice Jackson agreed with that assessment. In an earlier ruling, the Supreme Court had allowed Idaho’s abortion ban to temporarily go into effect, a “monthslong catastrophe” that was “completely unnecessary,” she wrote. That only “meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho.”
However, she disagreed with the court’s decision, saying that a dismissal on procedural grounds should not be “turned into a tool for the court to use to avoid issues that it does not wish to decide.”
“We cannot simply wind back the clock to how things were before the court injected itself into this matter,” Justice Jackson wrote. “There is simply no good reason not to resolve this conflict now.”
In his dissent, Justice Alito agreed that the court should have decided on the merits of the case, calling its decision to dismiss the matter an “about-face” that was “baffling.”
“That question is as ripe for decision as it ever will be,” Justice Alito 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.”
For him, he wrote, it was clear that the federal law “does not require hospitals to perform abortions in violation of Idaho law.”
To the contrary, he added, the federal law requires hospitals receiving Medicare funding “to treat, not abort, an ‘unborn child.’”
Justice Barrett appeared to carve a middle ground. She wrote that she agreed with the court’s decision not to decide on the merits, but the scope of the Idaho law had “significantly changed — twice” since the lawsuit began and the parties’ positions had “rendered the scope of the dispute unclear, at best.”
Her concurring opinion echoed her questions during oral argument, when she homed in on examining under what circumstances Idaho’s law would allow emergency abortions and when such procedures would be prohibited.
Julie Tate contributed research.
