US supreme court draft opinion would allow emergency abortions in Idaho – report

The US supreme court is reportedly set to rule to permit abortions in medical emergencies in Idaho, according to a report from Bloomberg, citing a copy of the opinion that was posted briefly on the supreme court’s website on Wednesday.

A majority of justices will reportedly dismiss the case as “improvidently granted”, meaning the supreme court should not have accepted the case. This dismissal would reinstate a lower court’s order that had allowed Idaho hospitals to perform abortions in cases where a woman’s health may be endangered. The state’s law currently only allows abortions when a woman’s “life” is in danger – a much higher threshold.

A dismissal would allow litigation to continue in lower courts, which means it could theoretically reach the high court again at a later date.

The copy of the opinion obtained by Bloomberg may not be final and could be changed. In the copy posted online by Bloomberg, the justices voted 6-3 to dismiss the case. Justice Elena Kagan wrote one opinion in favor of dismissal, joined in full by Justice Sonia Sotomayor and in part by Justice Ketanji Brown Jackson.

Jackson expressed reservations with the decision to dismiss the case – even though she joined it – since it leaves the door open for the issue to come back before the court.

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” Jackson wrote in an opinion of her own, according to the copy posted by Bloomberg. “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.”

In a statement, Beth Brinkmann, senior litigation director for US programs at the Center for Reproductive Rights, agreed with Brown.

“We have yet to see a final ruling from the court, but if this were to be the final ruling, we should not celebrate it as a win,” Brinkman said. “The language we saw today does not affirm that hospitals are required to treat pregnant people who need emergency abortions. It doesn’t say anything either way and punts the issue down the road. The same question is at issue in a case out of Texas, which may be at the supreme court as early as next term.”

Justice Amy Coney Barrett also wrote an opinion in favor of dismissal, which Justices Brett Kavanaugh and John Roberts joined. In Barrett’s view, the oral arguments in the case helped change the justices’ understanding of the case enough that she wants a lower court to weigh in before the supreme court.

“The opinion in Moyle v United States, No 23-726, and Idaho v United States, No 23-727, has not been released,” Patricia McCabe, a court spokesperson, said in a statement to the Guardian, referring to the title of the Idaho abortion case. “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.”

This appears to be the second such blunder from the court, once a fortress of secrecy, in as many years. A draft of the supreme court decision overturning Roe v Wade infamously leaked to Politico in May 2022, about a month before the final decision was issued. The final version of the opinion was virtually unchanged from the leaked copy.

Idaho has sought to have abortion exempted from the Emergency Medical Treatment and Labor Act (Emtala), which requires hospitals that receive federal dollars to stabilize the health of patients who show up at their emergency rooms with medical emergencies. The precedent sought by Idaho, critics said, would endanger pregnant people in any state that has abortion restrictions. The Biden administration sued Idaho to enforce the law.

Emtala is effectively Americans’ only universal right to healthcare. It came into the crosshairs soon after the supreme court overturned Roe. For nearly 50 years, the Roe ruling had provided a federal right to abortion up to the point that a fetus can survive outside the womb, which tends to occur around 24 weeks of pregnancy.

The Emtala law, signed by abortion opponent Ronald Reagan, sought to protect pregnant women in active labor in particular. Until its passage, hospitals often transferred or “dumped” women who could not pay when they suffered an emergency on public hospitals, even when in advanced stages of labor.

Emtala has endured a series of attacks, including by some hospital administrators who viewed it as an “unfunded mandate”. Although the federal government required hospitals to treat sick patients, it never provided money to care for indigent patients.

Justices Samuel Alito, Neil Gorsuch and Clarence Thomas all opposed dismissing the Emtala case, according to a copy of the draft decision posted by Bloomberg. In a fiery dissent, Alito argued that the text of Emtala, as well as the circumstances surrounding its enactment in 1986, makes clear that “it does not require hospitals to perform abortions”.

The majority’s move to dismiss the case, Alito wrote, is “baffling”.

“Apparently, the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” wrote Alito, who wrote the majority opinion overturning Roe. “That is regrettable.”

If the supreme court does move to dismiss the Emtala case, it would be the second defeat for abortion opponents this year, as the justices unanimously ruled earlier this month to uphold access to a popular abortion pill. However, that the justices appear to have rejected both cases on technical grounds, rather than on their merits, could leave the door option to similar cases brought by anti-abortion activists in the future.

The nation’s highest court, which typically issues all of its term opinions by the end of June, still has 11 more opinions to formally release. Decisions are expected Thursday and Friday.