The Supreme Court appears poised to temporarily allow emergency abortions in Idaho when a woman’s health is at risk, according to a copy of the opinion that appeared briefly on the court’s website Wednesday.
The unsigned opinion dismissed the case on procedural grounds, saying the court would not, for now, consider the merits of the dispute, according to the 22-page document, which was published by Bloomberg News. Such a ruling would reverse a lower federal court’s ruling that had halted Idaho’s near-total abortion ban and said state hospitals could perform emergency abortions if necessary to protect the mother’s health.
The case centers on whether a federal law requiring emergency care for any patient overrides Idaho’s strict abortion ban, which bans the procedure with few exceptions unless the woman’s life is in danger.
It was unclear whether the document was final, and a court spokeswoman said only that the decision in the joined cases, Moyle v. United States and Idaho v. United States, would eventually be made public.
“The court’s publications unit mistakenly and briefly uploaded a document to the court’s website,” spokeswoman Patricia McCabe said. “The court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.”
The split reported in the unsigned opinion, which is marked “per curiam,” meaning “by the court,” was essentially 6 to 3, with Justice Ketanji Brown Jackson writing a partial concurrence and a partial dissent. He wrote that he would have found that the federal law overrides Idaho’s strict ban, adding that he believes the Supreme Court should have heard the issue immediately, 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., wrote or joined dissenting 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 decisions that morning. Neither involved abortion.
If the document reflects a final decision, it will be the second time this term that the justices have reversed a decision on the merits of abortion. Wednesday’s opinion, which said the case was “safely issued,” suggested the justices would not rule on the merits, but would simply say women could maintain access to emergency abortions as the case moves through the courts. .
In her concurring opinion, Justice Elena Kagan said the ruling “will prevent Idaho from enforcing a ban on abortion when termination of pregnancy is necessary to prevent serious harm to a woman’s health.”
In her view, she added, the federal law at issue, known as the Emergency Medical Treatment and Labor Act, “unequivocally requires” hospitals that receive federal funding to provide whatever medical care is necessary to stabilize a patient.
Judge Jackson agreed with this assessment. In agreeing to hear the case, the Supreme Court also allowed Idaho’s abortion ban to go into effect temporarily, prompting what it described as an entirely unnecessary “monthly disaster.” Doctors in the state “were forced to stand back and watch as their patients suffered or arrange for their patients to be airlifted from Idaho,” he added.
However, he diverged from the majority, saying dismissal on procedural grounds should not become a way for the court to postpone certain issues.
“We cannot simply go back in time to the way things were before the court took up this matter,” Judge Jackson wrote. “There is no good reason not to resolve this conflict now.”
In his dissent, Justice Alito agreed that the court should rule on the merits of the case, calling its rejection a puzzling reversal.
“This question is as ripe for decision as ever,” Justice Alito wrote. “Apparently, the court simply lost the will to decide the easy but emotional and highly politicized question the case presents. This is sad.”
To him, he wrote, federal law clearly “does not require hospitals to perform abortions in violation of Idaho law.” Instead, he added, it requires hospitals receiving Medicare funding to “treat, not abort, an ‘unborn child.’
Judge Barrett appeared to strike a middle ground. Even as he wrote that he agreed to the dismissal, the scope of Idaho law had “changed significantly — twice” since the lawsuit was filed, and the parties’ positions “made the scope of the dispute unclear at best.”
Her concurrence echoed her questions during oral argument, when she argued under what circumstances state law would allow emergency abortions and when such procedures would be prohibited.
The apparently coincidental release of the opinion on the case, coming in the frenetic final days of the term, echoed, in some ways, the leak of the draft opinion overturning a constitutional right to abortion.
Although abortion rights advocates welcomed the apparent outcome of the Idaho case, they cautioned that it did not amount to a clear victory.
“If the leaked opinion is accurate, it’s clear that pregnant women are not out of the woods — not far off,” said Alexa Kolbi-Molinas, deputy director of the American Civil Liberties Union’s Reproductive Freedom Program. “Make no mistake: The Supreme Court had an opportunity to rule once and for all that every pregnant woman has a basic right to emergency abortion care, but it appears it didn’t.”
It mirrors the backlash this month after the court rejected a bid by a group of anti-abortion medical organizations and doctors seeking to limit the availability of a common abortion pill used in the majority of abortions in the country. Finding that the plaintiffs had no standing to challenge the drug’s approval, the court avoided deciding the case on the merits and upheld widespread access to the drug, mifepristone.
A broad ruling in the Idaho case could have ramifications for more than a dozen states that have enacted near-total bans since the court overturned Roe v. Wade in 2022. The federal emergency care law was considered one of the few — and limited — ways the Biden administration has sought to challenge state abortion bans and preserve access, though the court battle affects only a limited number and type of patients.
Idaho had asked the Supreme Court to intervene after an 11-member panel of the US Court of Appeals for the Ninth Circuit temporarily blocked the law. By agreeing to hear the case, the judges had reinstated the ban.
Under Idaho law, abortion is illegal except in cases of incest, rape, certain cases of non-viable pregnancy, or when it is “necessary to prevent the death of the pregnant woman.” Doctors who perform abortions may face criminal penalties, imprisonment and loss of license to practice medicine.
The Biden administration had argued that the ban conflicts with federal law and that federal law should override it. Idaho argued that the Biden administration had misinterpreted federal law in an attempt to circumvent state bans, effectively turning hospitals into legal abortion sites.
Julie Tate contributed to the research.
