The Supreme Court would allow emergency abortion care in Idaho for now despite the state’s restrictions on the procedure, according to Bloomberg Law, which viewed a copy of a not-yet-released opinion that was briefly posted on the court’s website Wednesday.
The decision, which has not been announced by the court, would mean that hospitals could perform emergency abortions to stabilize patients without being subject to prosecution under Idaho’s abortion ban. It would be at least a temporary victory for the Biden administration, which has struggled to protect abortion access since the high court overturned Roe v. Wade two years ago.
According to a copy of the opinion posted by Bloomberg, the court’s ruling would reinstate a lower court decision that had allowed emergency abortion care while litigation continues. The court had paused that lower court ruling months ago, in an emergency action, before hearing arguments in the case in April.
It is extremely rare — perhaps unprecedented — for a Supreme Court ruling to be posted on the court’s website before the ruling is issued, and it is possible that the document that was posted could differ from the opinion when it is announced. The momentous decision overturning Roe, known as Dobbs v. Jackson Women’s Health Organization, was also made public early, in that case through a leak to the news organization Politico.
A Supreme Court spokeswoman said Wednesday that the posting of the Idaho decision was accidental, cautioning that no ruling had been released.
“The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website,� spokeswoman Patricia McCabe said in a statement. “The Court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.�
The text posted by Bloomberg shows the justices voting 6-3 with conservative Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch in dissent.
Liberal Justice Ketanji Brown Jackson also wrote separately to say the court should have decisively resolved the matter rather than taking the interim step of leaving a lower-court ruling in place while litigation continues.
“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,� she wrote in a partial dissent. “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 concurring opinion, Justice Elena Kagan says Idaho’s strict ban had forced the state’s largest provider of emergency services to airlift pregnant women out of the state roughly every other week. The court’s decision “will prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman’s health,� wrote Kagan, who was joined by Jackson and Justice Sonia Sotomayor.
The White House declined to comment on the ruling until it is issued.
The case centers on the nearly four-decade-old Emergency Medical Treatment and Labor Act, known as EMTALA, which requires hospitals that receive federal funds to stabilize or transfer patients needing emergency care.
The Biden administration sued Idaho in 2022, saying the state’s strict abortion ban conflicts with the law. Idaho bans almost all abortions and imposes penalties of up to five years in prison on doctors who perform the procedure, with an exception of when “necessary to prevent the death of a pregnant woman.�
The administration said EMTALA requires abortions for pregnant women if needed to address threatening health conditions short of death, such as organ failure or loss of fertility.
A district judge in August 2022 sided with the Biden administration and said that because of the obligation of hospitals under federal law, Idaho doctors cannot be punished for performing an abortion to protect a patient’s health.
Then a three-judge panel of the U.S. Court of Appeals for the 9th Circuit allowed the state to enforce the law — before a full complement of judges on the same appeals court again blocked Idaho’s ability to punish emergency room doctors while the appeals continued.
In January, the Supreme Court agreed to take the case in response to Idaho’s emergency request and allowed the law to take effect while litigation continued.
The case is one of two before the high court this term that will shape abortion access nationwide, two years after the justices overturned Roe, which had guaranteed a constitutional right to abortion.
The justices in early June unanimously rejected a challenge to the widely used abortion medication mifepristone, saying the antiabortion doctors who brought the lawsuit did not have standing to do so.
The court is in the final days of its term, with the EMTALA decision and about eight others not yet announced to the public.
This is a developing story. It will be updated.
Dan Diamond and Aaron Schaffer contributed to this report.
