The Supreme Court appears poised to temporarily allow emergency abortions in Idaho if a woman's health is at risk, according to a copy of what appears to be an opinion that was briefly posted on the court's website on Wednesday.
The unsigned opinion, a 22-page document published by Bloomberg News, dismissed the case on procedural grounds and said the court would not address the substantive aspects of the dispute for now. Such a decision would suspend Idaho's near-total abortion ban and reinstate a lower federal court ruling that allowed hospitals in the state to perform emergency abortions if necessary to protect the mother's health.
The case centers on whether a federal law requiring emergency treatment for any patient overrides Idaho's strict anti-abortion laws, which ban abortions with almost no exceptions except when a woman's life is at risk.
It was unclear if the document was final, with a court spokesman saying only that the decisions in the consolidated cases of Moyle v. United States and Idaho v. United States would be released eventually.
“The court's publishing department inadvertently uploaded documents to the court's website for a short period of time,” spokeswoman Patricia McCabe said. “The court's decisions in Moyle v. United States and Idaho v. United States will be released in the coming days.”
The split, outlined in an unsigned opinion marked “per curiam,” was effectively 6-3, with Justice Ketanji Brown Jackson writing in partial concurrence and partial dissent. She wrote that she would have found that federal law prevailed over Idaho's strict ban, adding that she believed the Supreme Court should immediately consider the issue at hand rather than remanding the case to lower courts.
The liberal justices all wrote or joined concurring opinions, with Justices Amy Coney Barrett, Brett M. Kavanaugh and Chief Justice John G. Roberts Jr. Three of the court's conservative justices dissented: Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch.
The documents posted online were dated Wednesday, but the court released only two decisions that morning, neither of which related to abortion.
If the document reflects a final decision, it would mark the second time this term that the Supreme Court has avoided ruling on abortion rights. Wednesday's ruling, which declared the case “frivolously admitted,” suggests the court will not issue a substantive ruling but will simply say that women can preserve their right to emergency abortions while the case goes before the court.
Justice Elena Kagan wrote in concurrence that the ruling “prevents Idaho from enforcing its abortion ban when abortion is necessary to prevent serious harm to a woman's health.”
In her view, the federal law at issue, the so-called Emergency Medical Treatment and Labor Act, “clearly requires” hospitals that receive federal funding to provide any medical treatment necessary to stabilize a patient's condition, she added.
Justice Jackson agreed with that assessment. When the Supreme Court agreed to hear the case, it also allowed Idaho's abortion ban to stand temporarily, causing what he described as “months of entirely unnecessary catastrophe.” Doctors in the state were “forced to either watch their patients suffer or arrange for them to be airlifted out of Idaho,” he added.
But she disagreed with the majority, saying dismissals on procedural grounds should not be a way for the court to postpone certain issues.
“We cannot simply rewind the clock to the situation before the Court intervened in this matter,” Judge Jackson wrote. “There is simply no good reason not to resolve this dispute now.”
Justice Alito, in his dissent, agreed that the court should have ruled on the substance of the case and called the dismissal an inexplicable reversal.
“This issue is more ripe for decision than ever before,” Justice Alito wrote. “Apparently, the Court has simply lost the will to decide the simple but emotive and highly politicized issues this case raises. That is unfortunate.”
To him, federal law clearly “does not require hospitals to perform abortions in violation of Idaho law,” he wrote. Instead, he added, federal law requires hospitals that receive Medicare funding “to treat, not abort, the 'fetus.'”
Judge Barrett appears to be seeking a compromise: She wrote that she would vote to dismiss the case, but that the scope of Idaho law has “significantly shifted twice” since the case began, and the parties' positions “at best make the scope of the dispute unclear.”
Her concurring opinion echoed questions she had asked during oral argument, where she focused on under what circumstances state laws allow emergency abortions and under what circumstances such procedures would be prohibited.
The coincidental release of the ruling in this case amid the chaos of the final day of the term was, in some ways, reminiscent of the leak of a draft ruling that overturned the constitutional right to abortion.
Abortion rights advocates welcomed the outcome of the Idaho case but warned it was not a clear-cut victory.
“If the leaked decision is accurate, it's clear that pregnant people are not out of the woods – far from it,” said Alexa Kolbe Molinas, vice director of the ACLU's Reproductive Freedom Project. “Make no mistake: the Supreme Court had an opportunity to decisively determine that all pregnant people have a fundamental right to emergency abortion care, but it appears to have failed to do so.”
That's similar to the reaction after the court this month rejected a challenge by anti-abortion medical groups and doctors seeking to restrict access to a common abortion pill used in most abortion procedures in the country. By ruling that the plaintiffs had no right to challenge the drug's approval, the court avoided a fundamental ruling in the case and allowed widespread availability of the drug, called mifepristone.
A broad decision in the Idaho case could affect more than the dozen states that have enacted near-total abortion bans since the Supreme Court overturned Roe v. Wade in 2022. The federal Emergency Medical Care Act was seen as one of the few (and limited) ways the Biden administration sought to challenge state abortion bans and preserve access, but the legal battle only affected a limited number and types of patients.
Idaho had asked the Supreme Court to intervene after an 11-judge panel of the U.S. 9th Circuit Court of Appeals temporarily blocked the law. The justices agreed to hear the case and reinstated the ban.
Under Idaho law, abortion is illegal except in cases of incest, rape, a nonviable pregnancy or when “it is necessary to prevent the death of the pregnant woman.” Doctors who perform abortions can face criminal charges, prison time and loss of their medical licenses.
The Biden administration had argued that the ban conflicted with federal law, which should prevail. Idaho argued that the Biden administration improperly interpreted federal law to get around the state ban, effectively turning the hospitals into legal abortion facilities.
Julie Tate contributed to the research.