For the second time in two years Supreme Court big abortion decision leaked Before the judges officially released it. This time, however, the most likely explanation is a clerical error by someone who manages the court’s website.
Two years ago, an early draft of Justice Samuel Alito’s opinion Dobbs v. Jackson Women’s Health Organizationoverruling the case Roe v. Wade, leaked to the press. The leaker’s identity remains unknown, as does the leaker’s motive. The Supreme Court issued its final opinion almost two months after the leak DobbsWhich was similar to the leaked draft.
On Thursday, another notable abortion opinion leaked — though this time the leak appears to have been an accident. According to Bloomberg, the justices opinion Moyle v. United States wasBriefly posted on the court’s websitebefore taking down. A spokesperson for the Supreme Court said, “The publication unit of the court Inadvertently and briefly uploaded a document on the court’s website,” and that the final decision “will be issued in due course.” Bloomberg posted the text of the leaked document at this link.
Moel It asks whether states can ignore a federal law that requires most hospitals to provide emergency care to patients — including abortion if it’s medically appropriate. Specifically, whether Idaho’s almost complete ban on abortion prevents doctors from providing medically necessary abortions.
Presuming the leaked document resembled the court’s final decision, most justices chose not to decide. Moel Although the court apparently split into four separate concurring and dissenting opinions, none of which garnered the support of a majority of the justices, the five justices apparently decided that the court was wrong to take the case using an expedited process that bypasses an intermediate appeals court. .
The leaked documents contain some good news for abortion rights advocates. Last January, the court temporarily blocked a lower court decision, which said the state of Idaho could not enforce a strict abortion ban against patients who needed an abortion to save their lives or avoid catastrophic health consequences. In leaked documents, six justices voted to uphold a lower court order — at least for now — that means Idaho patients needing medically necessary abortions will no longer need to be flown to another state.
Still, the initial impact of the decision, assuming it closely resembles the leaked draft, is likely to be the final resolution of the case after the election. That means that patients outside of Idaho — who are hoping a decision in this case will set a precedent that requires ER doctors across the country to follow federal law requiring care in emergency situations — may not be able to get abortion care. That is to save their lives or avoid very serious health consequences.
What is at stake? Moel
federal Emergency Medical and Labor Act (EMTALA) requires hospitals that receive Medicare funding — which is nearly all hospitals — to provide “treatment that may be necessary to stabilize the medical condition” to “any person” who “arrives at a hospital ER with an emergency medical condition.” “
EMTALA, moreover, defines an “emergency medical condition” to include conditions that not only threaten the patient’s life, but also “serious impairment of physical function” or “severe dysfunction of any bodily organ or part.” . Thus, if a patient’s uterus is destroyed if they do not receive an abortion, EMTALA generally requires hospitals to provide that abortion even if the patient is likely to survive without it.
This federal law conflicts with an Idaho law, which bans all abortions when “Necessary to prevent death of pregnant women“
When a federal law conflicts with a state law, the Constitution provides that the federal law “It will be the highest law of the land” – and thus state law is “preempted”. EMTALA also contains a provision stating that state and local laws must give way “to the extent that [state law] In direct conflict with a requirement of this section“
So this should be an easy case. EMTALA imposes a broad requirement on almost all hospitals to provide emergency care, and it does not include an exception for abortion. The statute, moreover, expressly states that state laws must give way when they directly conflict with EMTALA.
But, in this court, nothing involving abortion can ever be simple.
how Moel The Justices appear to be divided
The court’s three Democratic appointees, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, all argued in two separate leaked opinions that EMTALA actually means what it says — though they appear to be divided on a procedural question.
Typically, the Supreme Court waits until at least one appellate court has weighed in on a case before taking it up. inside MoelHowever, the court introduced an unusual process known as “pre-trial certiorari” to bypass the appellate court that is supposed to hear the case. Kagan, joined by Sotomayor, argued that the case should be sent back to the appeals court that should have heard it Moel in the first position.
Jackson, meanwhile, argues that the court should immediately rule that EMTALA means what it says. As he wrote in documents published by Bloomberg, doctors “observing the various legal boundaries for taking action under state and federal law” are “certainly afraid of not performing abortions” as required by federal law — especially because of the risk that they might be prosecuted under state law. A Supreme Court decision that EMTALA trumps state law would allow doctors to perform definitively medically necessary abortions.
On the court’s far right, Alito, in a leaked opinion by Justice Clarence Thomas and in part Justice Neil Gorsuch, argued for an abortion exception to the EMTALA law. Alito first points to several provisions of the law that use the phrase “unborn child” (these provisions primarily require hospitals to offer stable care to the fetus of a pregnant patient), suggesting that a law that uses that phrase should be read to permit abortion. not
Alito also made a novel constitutional argument, claiming that the state of Idaho must consent before EMTALA bans abortion.
That left Justice Amy Coney Barrett, writing for herself, Chief Justice John Roberts and Justice Brett Kavanaugh, in the middle.
Barrett’s opinion, as it appeared in Bloomberg Leak, left almost every important question open Moel Undecided, he agreed with Kagan that the case should be sent back to the lower court, thus creating a majority for that result. And he wrote that Alito’s constitutional argument was “rigorous and consequential” without taking a position on that argument.
The emphasis of Barrett’s opinion is that there is no longer a need to bypass the Court of Appeals and decide this case on an expedited basis because of the waivers by lawyers on both sides. The Biden administration, which argues for reading EMTALA according to its plain text, has acknowledged that EMTALA cannot be used to authorize abortions because a patient has a mental health condition. And it also acknowledged that federal laws allowing hospitals or doctors with moral objections to abortion to opt out of providing them even apply under EMTALA.
Idaho lawyers, meanwhile, contend that its state law allows abortion for certain medical conditions “even if the threat to the woman’s life is not imminent.”
According to Barrett, “the parties’ positions are still evolving” in this case, and thus it makes sense to refine those positions in lower courts before the Supreme Court gets its final word.
So the good news for abortion rights advocates is that Idaho emergency room patients will get the full benefit of EMTALA, at least while this case works its way through the appeals courts and back to the justices. Bad news leaked Moel The decision does nothing to help similar patients in the other 49 states.
And that’s a serious problem for abortion rights in general. Jackson notes as his opinion, a problem that has arisen ever since Dobbs That is, even the most anti-abortion states generally allow abortion in some cases—such as if a patient’s life or health is threatened—with no court precedent explaining when abortion is permissible and when it is not. This means that doctors cannot know, and their lawyers cannot advise them, when it is legal to have a medically necessary abortion.
And that’s created a reality where these exceptions are “extremely difficult — in some states, nearly impossible to qualify for,” as my colleague Nicole Naria reports:
Kate was a woman from Cox, Texas significantly denied An abortion though her fetus was diagnosed with a rare and terminal genetic condition and was forced to travel out of state to get one. Other women have been Obliged to carry the term Fetal doctors know that a fetus will, or will, die soon after birth Denied abortion care even after experiencing a miscarriage Which puts them in medical crisis. The Texas Supreme Court also ruled against a group of 20 women who claimed they were Denied medically necessary abortions.
The Moel The case was an attempt to solve this problem by allowing federal courts to develop precedent when EMTALA created abortion rights. But that process can’t begin until a court agrees that EMTALA means what it says.
If leaked like this Moel If the decision turns out to be authoritative, it means it could be months or even years before federal courts start setting precedent for hospital lawyers to advise their clients — and that’s assuming Alito doesn’t ultimately vote to write the abortion exception into EMTALA.
