The Abortion Punt

SCOTUS dodges and weaves again around a politically explosive issue.

Photo: Jim Watson / AFP via Getty Images

The Supreme Court has issued yet another non-ruling on abortion, a day after the draft opinion once again leaked early. This one concerns Idaho, which had sought to outlaw all abortions except where necessary to save the mother’s life. It insisted upon this even where a federal law called the Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals to perform “stabilizing treatment” to women with “emergency medical conditions.” That treatment can sometimes include abortion, for example when an ectopic pregnancy threatens a rupture. 

The case is an example of how the “question” of abortion was by no means decided by Dobbs. By sending the question of abortion back to the states, a host of questions would inevitably arise, including what to do when federal law conflicts with state law.

Under any normal reading of precedent, and when the statutory language is clear, federal law should preempt state law in this matter. In fact, viewed cynically, as we should anything coming out of this Court, the conservatives appear to have punted this case just so they can take it up again when no election looms.

In today’s piece, I’ll walk through the bizarre procedural background of this case. Then I’ll quickly review how the justices, particularly Amy Coney Barrett, somehow justified sending the case back down to the district court for a trial. Finally, I’ll explain why we are nowhere near out of the woods on the right to medically necessary abortion care.

See? The Court can move abruptly when it wants to.

Much has been said about the power of the Court to cause undue delay, resulting in justice denied by putting off things like the Trump January 6th trial until after the election. As you may recall, Jack Smith sought to leapfrog the D.C. Court of Appeal and put the question of Trump’s absolute immunity before the Supreme Court directly through what’s called a petition for “certiorari before judgment.” But the Court denied him that speed and efficiency, held a hearing on the last day possible, and has yet to issue a ruling now many months later.

But in the Idaho abortion case, the Court demonstrated that it can jump in and act quickly, and even take up a case directly, without much justification at all. 

For this part, I’m borrowing from the excellent summary by Professor Steve Vladeck. The U.S. had sued Idaho under EMTALA to block Idaho from enforcing its law and denying women emergency abortion care when medically necessary to stabilize them, even if their lives were not in immediate danger. A federal court issued a preliminary injunction against enforcing the Idaho law.

Idaho filed an emergency motion with the Ninth Circuit asking that the trial court’s injunction be lifted while the appeal was pending. The Ninth Circuit, sitting en banc, denied the motion, and Idaho remained enjoined from enforcing its draconian abortion law.

But then SCOTUS stepped in. Without explanation, the justices—or at least four of them—put the ban back into effect, agreeing to hear the case directly and leapfrogging the Ninth Circuit. That’s right, the justices granted an extraordinary “certiorari before judgment” in precisely the way they refused to do for Jack Smith. 

As Prof. Vladeck noted, “The grant of certiorari before judgment was especially surprising—since there was no obvious reason to short-circuit the ordinary process of appellate litigation, especially once the Court issued a stay.”

The Supreme Court’s decision to step in so forcefully was seen as an ominous sign for abortion rights. What was so important that the Court had to intervene specifically to allow Idaho to mess with pregnant women’s lives in this way? Why not let the normal appeal process go forward? Court watchers expected a terrible decision this term, but at least it would become another radioactive disaster for the GOP.

And that may explain what happened next.

SCOTUS dodgeball

The ruling of the Court was “per curiam,” meaning “by the Court” without any author identified. It was only one sentence long:

The writs of certiorari before judgment are dismissed as improvidently granted, and the stays entered by the Court on January 5, 2024, are vacated. 

What does that mean in real terms? The case now goes back down to the district court to hold a trial and determine whether a permanent injunction against the law should be ordered in light of controlling federal law. This is where things should have been, had the Court not jumped in suddenly on January 5th.

Improvidently granted, indeed.

But this is important: That decision to not hear the case on its merits won a bare majority of 5-4. Three extremists—Justices Alito, Thomas and Gorsuch—were in dissent because they would have decided the case on the merits and ruled for Idaho. And Justice Jackson dissented, too; she would have decided the case on the merits and ruled for the U.S. government.

So why didn’t either Justice Kagan or Sotomayor join Jackson and make it five? My bet is that they couldn’t be sure they could get two of the three remaining conservative justices, Roberts, Kavanaugh and Barrett, to rule against Idaho at this time. Better in their minds to join with those three to dismiss the appeal for now and wait for it to wind its way through, perhaps with a different make-up on the High Court by the time it made its way back up.

That explains the 5-4 decision. But just to make this more complicated, from there the justices split into camps. As Rick Hasan of Election Law Blog put it,

[T]here are three camps on the Court. The three liberal Justices believe that the Idaho law that would prevent abortions even in cases of serious health risks to the mother violates federal law. The three dissenters, Alito, joined in part by Thomas and Gorsuch, believe that Idaho’s law limiting abortions in these emergency settings is not preempted by federal law….

Barrett, joined by Kavanaugh and the Chief Justice, say that how the case developed, and particularly how the U.S. government presents how to understand the relationship between federal law and Idaho law, means there’s less of a conflict and no need for the Court to step in right now. 

As I’ll explain below, once again it seems like Justice Barrett is in the driver’s seat. 

Barrett makes a case for punting

Justice Barrett wrote a concurring opinion explaining why the Court should not hear the case it had insisted on hearing immediately earlier this year. It was an admirable effort, but the logic seems thinly stretched.

She began by noting legal developments in the case since the High Court accepted the case. After the trial court issued the preliminary injunction, the Idaho Supreme Court construed the abortion ban directly. It found there is no requirement of “objective certainty” or a “particular level of immediacy” before an abortion can be considered “necessary” to save the pregnant mother’s life. The state’s High Court also held that “treating an ectopic pregnancy by removing the fetus” is not an “abortion” under the Act. Finally, in the intervening months the Idaho legislature amended the definition of “abortion” to exclude removal of a dead child or ectopic pregnancy, among other changes.

There’s more. According to Barrett, the parties’ positions and arguments in litigation also have changed. The parties fundamentally dispute whether EMTALA even requires hospitals to provide abortions as necessary stabilizing care. They also disagree over whether EMTALA, as a statute enacted under Congress’s spending power that operates on private parties, can preempt state law at all. (Note: I am worried that Barrett considers this an “important” question that would be “imprudent” to decide now.)

Perhaps most importantly to Barrett, a chief argument made by Idaho was that abortion care could be provided under EMTALA in order to stabilize the mental state of the patient. But that is no longer at issue.

“Idaho projected that emergency rooms would function as ‘federal abortion enclaves’ governed not by state law, but by physician judgment, as enforced by the United States’s mandate to perform abortions on demand,” Barrett noted. “Idaho also warned that the Government’s interpretation would ‘threate[n] religious healthcare providers’ by forcing doctors and hospitals to perform abortions regardless of conscience objections.”

Barrett said that both of these considerations were relevant to the Court’s decision in January to grant review so as to avoid “irreparable harm” to the state of Idaho and the need for “immediate determination in this Court.” But the U.S. government now states that the mental condition of the patient was never a consideration for requiring an abortion. Only physical conditions matter. And the U.S. clarified that federal conscience protections apply to EMTALA. 

Given that, Barrett said it was a “miscalculation” to grant review before judgment in the first place. 

In other words, “Whoops!”

Here’s how she put it: “The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up.”

If you’ve made your way this far, congratulations, because that is a lot of wiggling by Barrett. And Justice Jackson called her out on it in her separate opinion.

Justice Jackson’s takedown

Justice Jackson’s frustration with Barrett’s concurrence was palpable. The Court had first insisted back in January that it must step in to clarify where federal law ends and state law begins around emergency abortion care, only to punt on the question once again in June on grounds that review was “improvidently granted.”

“This Court typically dismisses cases as improvidently granted based on ‘circumstances…which were not…fully apprehended at the time certiorari was granted.’ This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.”

Justice Jackson then noted that the federal government remains “hamstrung” from enforcing its laws against states that pass laws to undo EMTALA protections around abortion. Healthcare providers also remain “paralyzed by legal uncertainties” that put patients at risk. And as for the parties allegedly changing positions, “both Idaho and the United States still agree that Idaho law directly criminalizes emergency care that the Federal Government reads EMTALA to require.”

Jackson observed, “Idaho’s lawyers may have changed their tune about the exact types of medical care that fall in the gap between state and federal law, but the fundamentals of this dispute remain the same.”

“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” she added. “It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The Court has made this bed so now it must lie in it.”

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson added.

And we all know that delay is now the weapon of choice for the Court.

It’s probably the election

The Court’s refusal to rule on the case as it stands is likely driven by political considerations. As Mark Joseph Stern of Slate wrote,

This outcome reeks of a cynical compromise, secured by the more tactical conservative justices, to push this explosive issue past this fall’s election. The Republican Party’s position—that states may force patients to the brink of death before allowing them to terminate a failing pregnancy—is politically toxic.

Is it possible that the three justices in the middle on this case might actually agree that EMTALA, as narrowed, permits emergency abortions even where state law forbids it? Yes, but they could have come out and said that based on what we already know about the case. 

More likely, the middle justices plan to vote with the extremists in the end but didn’t want to do so in the middle of an election year, shining a spotlight once again on abortion. 

In some ways, this feels quite similar to their decision to rule against the plaintiffs in the mifepristone case on standing grounds. Why let the case get as far as it did, only to say it should never have gone up the appellate ladder in the first place? 

With this Court, it is best to presume that a bad result is coming, even if they put it off for strategic reasons. Count on the question of EMTALA coming up again soon, perhaps as early as next term, and for another gut punch to abortion rights.