The Supreme Court appears ready to let emergency abortions be performed in Idaho, despite the state’s near-total ban on procedure, according to a draft version of a decision the court accidentally posted on its website Wednesday and then quickly removed.
By a 6-3 vote, the draft decision dismisses the state of Idaho’s appeal of a lower court order temporarily permitting emergency abortions under federal law governing hospitals that accept Medicare, according to a copy posted by Bloomberg News, which discovered the document.
Idaho state law forbids the procedure except when necessary to save a woman’s life. The Biden administration, which sued the state, argued that federal law is more permissive, authorizing emergency abortions when needed to stabilize a patient in a health crisis.
The Supreme Court issued a statement saying that no decision was final. The opinion “has not been released,” the statement said. “The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website. The Court’s opinion in these cases will be issued in due course.”
The document displayed a court, already far behind its usual schedule, deeply divided over the emergency-abortion question two years after it eliminated women’s constitutional right to end unwanted pregnancies.
The draft order dismissing the case as “improvidently granted” was brief and unsigned, but all nine justices weighed in through concurring and dissenting opinions.
Six justices were ready to resolve the basic issue, the document shows: three siding with the Biden administration’s view, three agreeing with Idaho.
But the deciding hand was played by the triumvirate at the center of the right-leaning court: Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.
Barrett, in a concurring opinion Roberts and Kavanaugh joined, said that information that developed since the case was filed persuaded her that the Supreme Court should step back and let litigation play out below.
She wrote that both the Justice Department and Idaho had offered assurances suggesting they were not as far apart in their view of the law as they once had seemed. The Justice Department had stated that psychological conditions could never justify an abortion contrary to the state ban, and that doctors couldn’t be forced to perform the procedure if they held conscientious objections to it.
Idaho, meanwhile, had indicated that it didn’t require a woman to be at risk of immediate death before an emergency-room doctor could lawfully provide an abortion to preserve her life.
Such concessions “have rendered the scope of the dispute unclear, at best,” Barrett wrote, according to the document.
The decision to dismiss the case at the current stage also garnered the votes of liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Kagan, in a concurrence joined in whole or part by Sotomayor and Jackson, said it was clear that the federal Emergency Medical Treatment and Labor Act “preempts the Idaho law in a narrow class of cases: when the state law bars a hospital from performing an abortion needed to prevent serious health harms” short of the woman’s death, such as infertility.
Jackson, writing separately, went further, accusing the Barrett three of ducking the duty to resolve the dispute. “It is too little, too late for the Court to take a mulligan,” she wrote, especially because the issue will return sooner if not later. A U.S. appeals court in New Orleans, facing a similar conflict between the federal emergency-care law and Texas’ near-total abortion ban, sided with the state, she observed, and the Justice Department has already filed an appeal with the Supreme Court.
If it dismisses the case, the court would ensure it won’t have to decide the emergency-abortion question before the November 2024 election. Former President Donald Trump appointed three justices who voted to eliminate abortion rights in 2022. President Biden supports affording women control over their reproductive health and has championed legislation that would restore abortion rights nationwide.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, agreed with Jackson that the Barrett three were trying to avoid a tough choice.
“Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” Alito wrote, according to the document. But on the merits, Alito went the opposite direction from the liberals. He wrote that the federal law on emergency care, signed by the antiabortion Republican President Ronald Reagan, was never intended to cover the procedure.
The Idaho case is the second major abortion dispute the court has heard since it overruled Roe v. Wade in 2022, rescinding women’s constitutional right to end unwanted pregnancies before fetal viability which it had recognized in 1973. That decision, Dobbs v. Jackson Women’s Health Organization, also was disclosed prematurely, when a draft version was leaked to Politico.
Earlier in June, the court unanimously rejected a suit filed by antiabortion doctors seeking to limit access nationwide to the abortion pill mifepristone. The court said then that the activists had no legal standing to file the suit because they don’t prescribe or use the drug and aren’t harmed by Food and Drug Administration regulations specifying how other physicians can prescribe it.
The Idaho case comes amid stories of women with serious pregnancy complications being sent in ambulances or airlifted to hospitals in nearby states or denied care while their conditions deteriorate. States with abortion bans say their laws contain adequate exceptions for situations in which pregnant women are facing life-threatening emergencies. The Biden administration has taken a different view.
The Justice Department sued Idaho in 2022, and a federal district judge blocked the state from enforcing its law in medical emergencies. The Supreme Court later allowed the state to enforce its ban in full while its appeal proceeded.
A handful of conservative states, including Idaho, have clarified or amended their laws over the last couple of years in an effort to make it easier for doctors to provide abortions in emergency situations. Idaho’s supreme court last year clarified that the state’s law doesn’t require an imminent risk of death. Its legislature also amended the law to lessen the legal risk for doctors, including by excluding treatment for some common complications, such as removing an ectopic pregnancy, from the definition of abortion.
More than a dozen states have laws banning abortion in most cases, but all make some type of exemption for emergencies that threaten the life of the mother. A handful of states, however, don’t allow abortion if a woman is at risk of major impairment such as diminished kidney function or a uterus that is so badly scarred that she can no longer get pregnant.
The federal emergency care law, passed by Congress in 1986, was an effort to prevent hospitals from dumping or denying patients for economic reasons. It requires hospitals that participate in Medicare, the health-insurance program for seniors and younger people who are disabled, to provide emergency care to anyone regardless of his or her ability to pay.
Katie Glenn Daniel, state policy director at Susan B. Anthony Pro-Life America, on Wednesday called the case “a PR stunt to spread the lie that pro-life laws prevent women from receiving emergency care.”
Abortion-rights supporters said the court’s decision prolongs the uncertainty over emergency terminations. “For now, this means that patients in Idaho will be able to get the care they need, according to federal law—after seven months of pregnant people suffering in an unnecessary and possibly deadly legal limbo,” said Alexis McGill Johnson, president of Planned Parenthood Federation of America.