Supreme Court Appears Ready to Dismiss Idaho Abortion Case

Published June 26, 2024

National Review Online

An order inadvertently posted on the Supreme Court’s website this morning indicates that the Court, by a vote of 5 to 4, will dismiss as improvidently granted—in the Court’s jargon, DIG—the certiorari petitions that it granted in Moyle v. United States and Idaho v. United States.

Bloomberg, which first reported the inadvertent posting, has published the order (subscriber-only) on its website. A colleague has forwarded me a copy of the order, which I take to be the same as Bloomberg’s.

For background: The case presents the question whether a federal law known as EMTALA—the Emergency Medical Treatment and Labor Act—imposes a national abortion mandate in situations that meet the law’s definition of “emergency medical condition.”

Here is a quick summary of the order:

1. The one-sentence per curiam order states: “The writs of certiorari before judgment are dismissed as improvidently granted, and the stays entered by the Court on January 5, 2024, are vacated.”

This order means that the case returns to the Ninth Circuit, which had ordered that the appeal of the preliminary injunction be decided en banc on an expedited basis without any further briefing. The order also reinstates the district-court injunction that compels Idaho to allow abortions in any instances in which the life-of-the-mother exception under Idaho’s abortion law is narrower than EMTALA’s definition of “emergency medical condition.”

2. All nine justices have issued or joined separate opinions. In the sequence in which they appear in the order:

a. Concurring in the DIG, Justice Kagan, joined by Justice Sotomayor, maintains that the Court’s order “follows” from the “premise” that EMTALA preempts Idaho’s law when they conflict. But given that six justices do not adopt that highly dubious premise, there is no reason to think that Kagan’s view of preemption explains the Court’s order. In a second part of her opinion that Justice Jackson also joins, Kagan disputes Justice Alito’s dissenting opinion.

b. Justice Barrett, joined by the Chief Justice and Justice Kavanaugh, justifies the DIG on the ground that “the shape of these cases has substantially shifted since we granted certiorari”:

The parties dispute whether EMTALA requires hospitals to provide abortions-or any other treatment forbidden by state law-as necessary stabilizing care. They also disagree about whether EMTALA, as a statute enacted under Congress’s spending power and that operates on private parties, can preempt state law (an issue aired for the first time in this Court). In my judgment, it would be imprudent to answer these important questions now. Since this suit began in the District Court, Idaho law has significantly changed—twice. And since we granted certiorari, the parties’ litigating positions have rendered the scope of the dispute unclear, at best….

At the merits stage, … the United States disclaimed [what Idaho understood to be the federal government’s] interpretations of EMTALA. First, it emphatically disavowed the notion that an abortion is ever required as stabilizing treatment for mental health conditions…. Second, the United States clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.

Narrowing happened from the other direction too. The United States identified PPROM, placental abruption, pre-eclampsia, and eclampsia as conditions for which EMTALA requires an emergency abortion to be available…. But in this Court, [Idaho officials] represent that the Act permits physicians to treat each of these conditions with emergency abortions, even if the threat to the woman’s life is not imminent….

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving….

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law. The District Court did not address this issue below-nor did the Ninth Circuit, which we bypassed.

c. Justice Jackson dissents from the Court’s decision to dismiss the petitions. She would rule in favor of the United States now.

d. Justice Alito, joined by Justice Thomas and Justice Gorsuch, dissents from the order and would rule in favor of Idaho now. He argues that the preemption theory advanced by the United States is “plainly unsound”:

Far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her ”unborn child.” And even if there were some ambiguity in the statutory text, we would be obligated to resolve that ambiguity in favor of the State because EMTALA was enacted under the Spending Clause, and as we have held time and again, conditions attached to the receipt of federal funds must be unambiguous.

He spells out those positions in detail. He (joined here only by Thomas) also separately objects to the Court’s vacatur of its stay of the district-court’s injunction.

Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.

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