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 what appeared to be the opinion that appeared briefly Wednesday on the court's website.
The unsigned opinion dismissed the case on procedural grounds, saying the court would not, for now, address the merits of the dispute, according to the 22-page document, published by Bloomberg News. Such a decision would reinstate a lower federal court ruling that had suspended Idaho's near-total abortion ban and said the state's 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 trumps Idaho's strict abortion ban, which bars the procedure with few exceptions unless the woman's life is in danger.
It was unclear whether the document was final, and a court spokesperson said only that a decision in the consolidated cases, Moyle v. United States and Idaho v. United States, she would eventually be released.
“The court's publications unit inadvertently and briefly uploaded a document to the court's website,” said 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 outlined in the unsigned opinion, labeled “per curiam,” meaning “by the court,” was essentially 6-3, with Justice Ketanji Brown Jackson writing a partial concurrence and a partial dissent. He wrote that he would find that federal law trumps Idaho's strict ban, adding that he 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 M. Kavanaugh and Chief Justice John G. Roberts Jr., 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 published online was dated Wednesday. But that morning the court announced only two sentences. Neither involved abortion.
If the document reflects a final decision, it would be the second time this term that the justices have deflected the decision on the merits of abortion. Wednesday's opinion, which said the case had been “suddenly granted,” suggested that the justices would not rule on the substance but would simply say that women could maintain access to emergency abortions while the case progressed through the courts.
In her agreement, Justice Elena Kagan said the decision “will prevent Idaho from enforcing the abortion ban when termination of a pregnancy is necessary to prevent serious harm to a woman's health.”
In his view, he added, the federal law in question, known as the Emergency Medical Treatment and Labor Act, “unequivocally requires” that hospitals receiving federal funding provide whatever medical treatment is necessary to stabilize a patient.
Judge Jackson agreed with that assessment. When he agreed to hear the case, the Supreme Court also allowed Idaho's abortion ban to temporarily go into effect, resulting in what he described as a totally unnecessary “months-long catastrophe.” The state's doctors “were forced to stand back and watch as their patients suffered, or to arrange for their patients to be airlifted out of Idaho,” she added.
However, she distanced herself from the majority, saying that dismissal on procedural grounds should not become a way for the court to defer certain matters.
“We cannot simply turn back the clock to how things were before the court intervened in this matter,” Judge 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 ruled on the merits of the case, calling his dismissal a shocking reversal.
“This question is as ripe for a decision as it will ever be,” Justice Alito wrote. “Apparently, the court has simply lost the will to decide the easy but emotional and highly politicized issue that the case presents. This is deplorable.”
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 that receive Medicare funding “to treat, not abort, an 'unborn child.'”
Judge Barrett seemed to find a middle ground. Even when he wrote that he agreed with the dismissal, the breadth of Idaho law had “significantly changed – twice” since the lawsuit began and the parties' positions had “made the scope of the dispute unclear, at best hypotheses”.
Her concurring opinion echoed her questions during oral argument, when she focused on under what circumstances state law would allow emergency abortions and when such procedures would be prohibited.
The seemingly accidental release of the opinion in the case, in the final hectic days of the mandate, echoed, in some ways, the leak of the draft opinion striking down the constitutional right to abortion.
While abortion rights advocates welcomed the apparent outcome of the Idaho case, they cautioned that it was not a clear victory.
“If the leaked views are accurate, it is clear that pregnant women are not out of the woods, not by a long shot,” said Alexa Kolbi-Molinas, deputy director of the American Civil Liberties Union's Reproductive Freedom Project. “Make no mistake: The Supreme Court had the opportunity to affirm once and for all that every pregnant person has a fundamental right to emergency abortion care, but it appears it has not done so.”
That mirrored the reaction this month after the court rejected a request from a group of anti-abortion medical organizations and doctors seeking to reduce the availability of a common abortion pill used in most abortions in the country. Finding that the plaintiffs had no right to challenge the drug's approval, the court avoided deciding the case on the merits and preserved broad access to the drug, mifepristone.
A broad decision in the Idaho case could have implications for more than a dozen states that have adopted near-total bans since the court overturned Roe v. Wade in 2022. The federal emergency care law was seen as one of the few — and narrow — ways the Biden administration has sought to challenge state abortion bans and preserve access, though the legal battle covers 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 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 nonviable pregnancies, or when it is “necessary to prevent the death of the pregnant woman.” Doctors who perform abortions face criminal penalties, prison time, and loss of their medical licenses.
The Biden administration had argued that the ban conflicted with federal law and that federal law should prevail over it. Idaho argued that the Biden administration had improperly interpreted federal law in an attempt to circumvent state bans, effectively turning hospitals into legal abortion sites.
Julie Tate contributed to the research.