A U.S. Supreme Court opinion erroneously — and briefly — posted on the court’s website seems to indicate that the court will temporarily allow abortions in medical emergencies in Idaho, according to Bloomberg News.
If the court indeed rules in this manner, the decision would reinstate a lower court ruling that temporarily allowed hospitals in the state to perform emergency abortions to protect the life of the mother, and the health of the mother.
It is unclear if the inadvertently released opinion is the final version or whether the justices are still wrangling about what to say. If the 6-3 opinion holds, the court, with three conservatives — Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett — and three liberals — Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — in the majority, will dismiss the appeal from Idaho without considering the core issues in the case. Dissenting were Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas.
The Supreme Court is expected to release more opinions Thursday and Friday, and likely next week.
The inadvertent opinion release is not like the deliberate leak of the Dobbs abortion decision two years ago, which led to a court investigation, but no finding as to who the leaker was. But the Idaho case will no doubt put abortion back into the political limelight as a major controversy, just months before the presidential election, and it could alleviate some of the hostility to the court fomented by the decision two years ago overturning Roe v. Wade.
Congress passed the Emergency Medical Treatment and Labor Act, known as EMTALA, in 1986 to prevent hospitals from refusing care for uninsured patients or dumping them on other hospitals. The law says that as a condition for receiving Medicare and Medicaid funds, hospital emergency departments must stabilize a patient whose life or health is at risk. And if the hospital can’t do that, is must transfer the patient to a hospital than can.
That was all well and good until the high court overturned Roe. Within weeks, the Biden administration issued guidance to hospitals on how to comply with the emergency care provision under EMTALA, and the Justice Department sued Idaho for barring abortions when a pregnant woman faces an emergency that poses a grave threat to her health, but not an immediate threat to her life.
Wednesday's inadvertently posted decision did not permanently resolve whether Idaho acted within its rights, or whether the state law is pre-empted by EMTALA. Rather, by a 6-to-3 vote, the court retreated from a previous ruling that had temporarily allowed Idaho's law to take effect, meaning that emergency abortions were illegal in the state if they were to save a mother's health, but not her life.
Wednesday's briefly posted opinion dismissed the case as "improvidently granted" and returned it to the lower courts for further litigation. The case will now return to a federal district court judge, who had temporarily blocked the Idaho law from going into effect.
The briefly posted court document, included two concurring opinions, according to Bloomberg. In one, Justice Elena Kagan said that the court's 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."
Justice Ketanji Brown Jackson, in the other concurrence, warned that "Today's decision is not a victory for pregnant patients in Idaho. It is a delay. While this court dawdles and the country waits," she wrote, "pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires."
Idaho argued that it is entitled to determine how to balance the interests of the mother’s health and the interests of a fetus. The state law makes it a felony to provide an emergency abortion for a woman whose organs or future fertility are at risk, but not her life. The state contends that EMTALA was never intended to impose a national standard of care, and it has noted that EMTALA in four different places mentions “the unborn child.”
Justice Barrett, a longtime and strong opponent of abortion rights, who joined the decision overturning Roe, was clearly swayed during April's Supreme Court argument of the case when she perceived that the state had changed its position and no longer endorsed emergency abortions to protect a woman's health.
"I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered, and you're now saying they're not," Barrett said.
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