Leaked Supreme Court Abortion Decision Brings Little Long-Term Clarity

The Supreme Court is not a democratic institution. By design, it is not accountable to the American electorate. But it is typically accountable to its own schedule. The justices meet for their weekly conference almost every Thursday during its October-to-June term. Its weekly orders are released at 9:30 AM on Mondays. And, most importantly, rulings are published on the court’s website, handed out at its press office, and announced from the court’s chambers at 10 AM on specific, pre-announced days.

This judicial choreography usually works like clockwork—right up until it didn’t. The Supreme Court released two opinions on Wednesday morning. Then it also accidentally published what looks an awful lot like a ruling in Moyle v. United States, a major case on abortion access in Idaho this term. The court’s employees quickly removed it from the website, but not before eagle-eyed reporters at Bloomberg News noticed it and saved a copy of the PDF containing the putative decision.

It is worth noting that, by the justices’ own terms, the Supreme Court’s decisions only become real at the moment they are formally published and announced by the court. Wednesday’s accidental release does not count as legally binding on anyone for now. “The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website,” a Supreme Court spokesperson told Bloomberg News. “The Court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.”

But unless something dramatic happens behind the scenes in the next 48 hours, however, the justices are poised to allow Idaho doctors perform abortions if necessary in emergency situations despite a recently enacted state law that only allows the procedure if the mother’s life is at stake. A scrambled 5-4 majority voted to dismiss the appeal as “improvidently granted,” meaning that the lower-court proceedings can continue and no new precedent is set for now.

Five of the justices voted for dismissal: three of the court’s conservatives—Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett—and two of the court’s liberals, Justices Sonia Sotomayor and Elena Kagan. But the liberals and conservatives in that majority disagreed on why the appeal should be dismissed. Four of the court’s members—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Ketanji Brown Jackson—voted against dismissing the appeal. Jackson, however, disagreed with the three dissenting conservative justices on why the court shouldn’t dismiss it.

At issue in the case is Idaho’s Defense of Life Act, which it enacted in 2022 after the Supreme Court overturned Roe v. Wade. The law makes it illegal to perform an abortion in the state in nearly all circumstances. In its original form, it allowed medical professionals, if prosecuted, to make an affirmative defense that the abortion was necessary to save the mother’s life. That made it the strictest abortion ban in the country at the time.

Shortly after the law was enacted, the Justice Department sued Idaho to block its enforcement. The federal government pointed to the Emergency Medical Treatment and Labor Act, a 1986 law that requires hospitals that receive federal funds to provide “stabilizing care” to emergency-room patients. Congress enacted EMTALA because some private hospitals would transfer patients to public hospitals or refuse to treat them if those patients couldn’t afford it. That stabilization requirement, the department said, preempted Idaho’s abortion ban.

A federal district court in Idaho sided with the federal government and temporarily blocked the state from enforcing the law while litigation continued. In January, however, the Supreme Court stayed that decision and allowed Idaho’s abortion ban to take effect. (Doctors in Idaho have been airlifting their pregnant patients to neighboring states since then to avoid criminal charges or major health consequences.) At the same time, the justices also took the extraordinary step of directly reviewing the lower court’s decision without waiting for the Ninth Circuit Court of Appeals to review it first, a procedure known as “certiorari before judgment.”

Barrett, joined by Roberts and Kavanaugh, said that leapfrogging the lower courts was a mistake in their concurring opinion. (There is technically no majority opinion when the court dismisses a case as improvidently granted.) She wrote that the legal landscape had changed significantly since the court agreed to hear the case. Idaho lawmakers have amended the law to shift the burden of proof on medical necessity to prosecutors instead of doctors and exempted some serious medical conditions outright, such as ectopic pregnancies.

The Justice Department, for its part, also told the court at oral arguments in April that EMTALA does not override the federal conscience protections that Idaho doctors (and doctors everywhere else in the Union, for that matter) can invoke to avoid performing abortions. It also disclaimed the possibility that abortions would be performed solely for a mother’s mental health.

“A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented,” Barrett wrote. “That was a miscalculation in this case, because the parties’ positions are still evolving.” She also suggested that Idaho had raised a new “difficult and consequential argument” along the way: that Congress can’t use the Spending Clause to “obligate recipients of federal funds to violate state criminal law.” Barrett said the lower courts should consider that argument anew.

Kagan, writing for herself and Sotomayor, agreed with dismissing the appeal but for different reasons. “I do so because Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute,” she wrote. She also signaled that she agreed with the decision because it would block the Idaho law from taking effect while litigation continued. “That 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,” Kagan wrote.

Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, argued in dissent that the court should not dismiss the case and instead rule in Idaho’s favor. (Justice Ketanji Brown Jackson also dissented on dismissal, but said the court should rule in the federal government’s favor.) Alito, with an air of frustration, said that the court’s “about-face” was “baffling.”

“Everything there is to say about the statutory interpretation question has probably been said many times over,” he wrote. “That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents.”

Why did the Supreme Court “lose the will” to decide this case? It may have something to do with his next argument: that EMTALA actually requires federally funded hospitals to not perform abortions because it makes a few references to an “unborn child” in its provisions. “The text of EMTALA shows clearly that it does not require hospitals to perform abortions in violation of Idaho law,” he wrote. “To the contrary, EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”

That reading would not completely convert EMTALA into a nationwide ban on abortion, but it would come fairly close. Barrett did not address Alito’s interpretation in her own concurring opinion and focused instead on the procedural aspects of the case. But Kagan pushed back at his conclusions in her own concurring opinion. She noted that the law requires hospitals to “stabilize” patients with an “emergency medical condition” when they receive them, no matter what that stabilizing care might look like.

“The statute does not list particular treatments—for example, defibrillation, blood transfusion, or mechanical ventilation,” Kagan wrote. “What it instead requires is the treatment that is medically appropriate to stabilize the patient. And when a pregnancy goes terribly wrong, that treatment may be an abortion. Termination of the pregnancy (which is often of a non-viable fetus) may be the only way to prevent a woman’s death or serious injury, including kidney failure or loss of fertility. I do not understand Justice Alito to dispute that medical fact.”

The law’s references to an “unborn child,” Kagan added, were focused on emergency treatment for women in labor and were designed to prevent hospitals from transferring women elsewhere without considering the health of her child mid-delivery. Congress also added a reference to an “unborn child” in the definition of “emergency medical treatment” to prevent hospitals from eschewing their obligations if the mother herself was healthy.

“As originally enacted, EMTALA did not obligate hospitals to provide medical care when a woman’s fetus, but not the woman herself, was in peril,” Kagan wrote. “To fix that problem very large bipartisan majorities in both the House and the Senate elected to broaden the provision, entitling a woman to demand care for her unborn child as well as herself.”

In addition to the interpretive reasons why Alito’s reading of the law made no sense, Kagan also pointed out the obvious one: Nobody thought at the time that Congress was essentially enacting something akin to a national abortion ban when it enacted EMTALA in 1986. “The amendment would have likely sparked far more opposition if it somehow tacitly withdrew EMTALA’s requirements that hospitals treat women who need an abortion to prevent death or serious harm.”

Jackson, the only justice to write alone, agreed with most of Kagan’s analysis. But she warned that the outcome was not what it seemed. Jackson instead framed it as a punt by the majority, noting that the Fifth Circuit had just allowed a similar law in Texas to go into force. By not acting, she concluded, the court had “allow[ed] chaos to reign” until it is invariably forced to return to the question.

“Today’s decision is not a victory for pregnant patients in Idaho,” she wrote. “It is delay. While this Court dawdles and the country waits, pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it.”

It is worth emphasizing again that this draft is technically not the court’s final decision in the case. The justices are theoretically free to change their mind at any point before the court formally announces its decision. They may also do some final clean-up of their opinions before then, so the portions from which I have quoted may change.

That said, it would be stunning if the outcome is substantially different when this decision is officially announced. (I assume it will happen on Thursday morning, but the court would sooner overturn Marbury v. Madison than tell the public the exact day a specific decision will be released.) The justices typically do everything they can to wrap up their annual term by July 1, which leaves no real time for major edits or re-writes.

Americans can therefore safely assume that the state of Idaho, at least for now, cannot ban pregnant women from obtaining an abortion if they experience serious medical complications along the way. Americans are also free to wonder if the Barrett-Roberts-Kavanaugh troika’s change of heart means that Alito’s reading of EMTALA won’t become the law of the land at all, or if it has merely been postponed until next term or the term after that.