Supreme Court Appears Poised to Allow, for Now, Emergency Abortions in Idaho

WASHINGTON — 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 Wednesday.

The unsigned opinion dismissed the case on procedural grounds, stating that the court, for now, would not address the merits of the dispute, 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.

The case centers 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 pregnant person’s life is in danger.

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It was unclear whether the document was final, and a spokesperson for the court said only that a decision in the joined cases, Moyle v. United States and Idaho v. United States, would eventually be released.

“The court’s publications unit inadvertently and briefly uploaded a document to the court’s website,” said the spokesperson, 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 6-3, with Justice Ketanji Brown Jackson writing a partial agreement and a partial dissent. She wrote that she would have found that the federal law overrides Idaho’s strict ban, adding that she believed the Supreme Court should immediately consider the issue at hand, rather than sending it back to the lower court.

The liberal justices, along with Justices Amy Coney Barrett and Brett Kavanaugh and Chief Justice John Roberts, all wrote or joined in concurring opinions. Three of the court’s conservatives, Justices Samuel Alito, Clarence Thomas and Neil 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 Wednesday, which declared that the case had been “improvidently granted,” suggested that the justices would not rule on the substance, but simply say that people could retain access to emergency abortions as the case works its way through the courts.

In her concurrence, Justice Elena Kagan said the 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.”

In her view, she added, the federal law at issue, known as the Emergency Medical Treatment and Labor Act, “unambiguously requires” that hospitals receiving federal funding provide whatever medical treatment is necessary to stabilize a patient.

Jackson agreed with that assessment. When it agreed to hear the case, the Supreme Court also allowed Idaho’s abortion ban to temporarily go into effect, inciting what she described as a totally unnecessary “monthslong catastrophe.” Doctors in the state “were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho,” she added.

However, she veered from the majority, saying that a dismissal on procedural grounds should not become a way for the court to defer certain issues.

“We cannot simply wind back the clock to how things were before the court injected itself into this matter,” Jackson wrote. “There is simply no good reason not to resolve this conflict now.”

In his dissent, Alito agreed that the court should have ruled on the merits of the case, calling its dismissal a puzzling reversal.

“That question is as ripe for decision as it ever will be,” 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, the federal law clearly “does not require hospitals to perform abortions in violation of Idaho law.” To the contrary, he added, it requires hospitals receiving Medicare funding “to treat, not abort, an ‘unborn child.’”

Barrett appeared to carve a middle ground. Even as she wrote that she agreed with dismissal, the breadth of Idaho’s 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 under what circumstances the state’s law would allow emergency abortions and when such procedures would be prohibited.

The apparent accidental publication of the opinion in the case, coming in the frenzied final days of the term, echoed, in some sense, the leak of the draft opinion overturning a constitutional right to abortion.

Even as abortion rights advocates welcomed the apparent outcome of the Idaho case, they warned that it did not amount to a clear victory.

“If the leaked opinion is accurate, it is clear that pregnant people are not out of the woods — not by a long shot,” said Alexa Kolbi-Molinas, the deputy director of the American Civil Liberties Union’s Reproductive Freedom Project. “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.”

It mirrored the reaction this month after the court rejected a bid by a group of anti-abortion medical organizations and doctors seeking to curtail the availability of a common pill used in a majority of abortions in the country. In finding that the plaintiffs had no standing to challenge the drug’s approval, the court dodged deciding the case on its merits and preserved widespread access to the drug, mifepristone.

A broad decision in the Idaho case could have implications for the 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 narrow — ways the Biden administration has sought to challenge state abortion bans and preserve access, although the legal 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 U.S. Court of Appeals for the 9th Circuit temporarily blocked the law. In agreeing to hear the case, the justices had reinstated the ban.

Under Idaho law, abortion is illegal except in cases of incest, rape, some instances of nonviable pregnancies or when it is “necessary to prevent the death of the pregnant woman.” Doctors who perform abortions could face criminal penalties, prison time and loss of their licenses to practice medicine.

The Biden administration had asserted that the ban conflicted with federal law and that the federal law should override it. Idaho contended that the Biden administration had improperly interpreted the federal law in an effort to bypass state bans, effectively turning hospitals into legal abortion sites.

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