CNN
—
The Supreme Court appears poised to allow abortions in Idaho in cases of medical emergencies, Bloomberg News reported Wednesday, citing a stunning rule-breaking document that was accidentally posted on the court’s website.
A copy of the decision, reviewed by Bloomberg, shows that the majority of the court agreed to dismiss the appeal.
The release of the ruling was a surprise development for the Supreme Court, which typically adheres to a strict policy of publishing its rulings. The abortion case was considered one of the most important cases of the current term, wrapping up before the Fourth of July holiday.
The release of this decision marks the second time in two years that a major decision on an abortion case has been prematurely released by the Supreme Court. Two years ago, Politico obtained a draft of the Supreme Court’s decision overturning Roe v. Wade that was virtually identical to the final decision the Supreme Court released a few weeks later.
At issue is Idaho’s strict anti-abortion law, which allows exceptions in cases where the life of the pregnant woman is at risk. The Biden administration has argued that federal law also requires hospitals to perform abortions when a pregnant woman’s health is at risk.
If dismissed, it would affirm a unanimous decision by the 9th U.S. Circuit Court of Appeals that sided with the Biden administration in the case. Such a decision would be a victory for the Biden administration and a relief to Idaho women who fear medical complications from their pregnancies could put their health at risk.
But the central question of whether federal law protects access to abortion in medical emergencies remains unresolved and is unlikely to end the anxiety and uncertainty doctors have felt about how to navigate strict anti-abortion laws while treating patients.
CNN had not independently reviewed the comments, and Bloomberg did not publish the document.
A Supreme Court spokesperson confirmed that a “document” had been “briefly uploaded in error” to the court’s website. Supreme Court spokesperson Patricia McCabe stressed that an “opinion” in the case “has not yet been published” but “will be published in due course”.
In a copy seen by Bloomberg, the court voted 6-3 to temporarily allow emergency abortions in Idaho while the litigation continues.
Justice Elena Kagan wrote in concurrence that the Supreme Court’s decision “will prevent Idaho from enforcing an abortion ban in cases where abortion is necessary to prevent serious harm to a woman’s health,” according to Bloomberg.
Judge Ketanji Brown Jackson wrote in a separate letter that he would not have dismissed the case, according to documents seen by Bloomberg.
“Today’s decision is not a victory for Idaho’s pregnant patients; it is a delay,” she wrote. “While this court dithers and the country waits, pregnant people in need of emergency medical care remain in a precarious position because doctors are not informed of what the law requires.”
“If the reports are accurate, this would be a significant but temporary victory for the Biden administration,” said Steve Vladeck, CNN Supreme Court analyst and University of Texas law professor.
The Justice Department and the White House declined to comment on Bloomberg’s article and the erroneously posted document until the Supreme Court’s official opinion is released.
How abortion bans work in medical emergencies has emerged as a particularly hot political flashpoint in the aftermath of the overturning of Roe v. Wade. The Idaho ban in question allows abortions when a pregnant woman’s life is at risk, but not when her health is at risk. Six states have Idaho-like bans with no exceptions for the health of pregnant women, according to the Department of Justice, but several of those laws are subject to litigation.
The case before the Supreme Court is the second this year dealing with abortion and focuses on situations where pregnancy complications pose serious risks to a woman’s health but are not yet endangering her life. The Biden administration argued that Idaho’s ban could force patients to endure, for example, a hysterectomy and other lifelong complications if doctors refuse to perform abortions in emergency rooms.
The Department of Justice filed suit against Idaho over its abortion ban in August 2022, just weeks before the state was set to go into effect, arguing that federal law, the Emergency Medical Treatment and Labor Act (EMTALA), requires hospitals that receive Medicare funding to provide abortion care in medical emergencies. The law, passed in 1986, requires those hospitals to provide “stabilization” care to emergency room patients who suffer serious damage to their bodily functions.
Congress enacted EMTALA to stop hospitals from turning away patients who can’t pay for treatment. The law doesn’t dictate what hospitals must do to stabilize a patient, and Idaho has accused the Biden administration of misinterpreting the Reagan-era law to “create a national mandate for abortions in hospital emergency rooms.” The state also argued that post-enactment changes to abortion laws allow doctors to comply with EMTALA and the ban at the same time.
But the Biden administration strongly rejected that position, arguing that doctors would be reluctant to perform abortions even if they were technically able to do so for fear of prosecution. U.S. Attorney General Elizabeth Preloger, representing the Biden administration, told the justices that doctors would be less likely to perform abortions if they feared “a prosecutor would be watching their backs and speculating that maybe it wasn’t really necessary to prevent a death.”
Under Idaho law, performing an abortion is a felony punishable by up to five years in prison and can cause a doctor to lose their medical license.
The ruling came days after the Supreme Court unanimously rejected an attempt by anti-abortion groups to restrict access to the abortion drug mifepristone. The court ruled that the groups that challenged access to the drug did not have standing to sue, but that does not preclude other groups from suing.
During oral arguments on April 24, several members of the Supreme Court’s conservative majority expressed skepticism of the Biden administration’s position, with some justices casting the case as an infringement of the federal government’s right to regulate state health care. The Republican-appointed justices also zeroed in on an amendment Congress made to federal law in 1989 to add language about the “fetus” of pregnant women as protected. Idaho argued that it was nonsensical for a law that spoke to the protection of the fetus to require hospitals to provide abortions.
The Biden administration countered that the reference was added to make clear that hospitals cannot turn away women who are giving birth and whose fetuses are at risk. Preloger told the court that the language should not be interpreted as ignoring hospitals’ obligation to treat women whose pregnancies pose a significant risk to their health.
During the hearing, the court’s three liberal justices focused on dire medical emergencies that could lead to a woman being denied abortion care under Idaho’s state and federal theory. Conservative Justice Amy Coney Barrett jumped in to weigh in, expressing surprise at the way Idaho attorney Joshua Turner had handled the justice’s questions about some hypotheticals.
A federal district court in Idaho blocked the state’s law last year. A three-judge panel of the 9th Circuit Court of Appeals suspended that decision, allowing the law to go into effect. A few weeks later, a full panel of the 9th Circuit reversed the panel’s decision and again put the law on hold. In January, the Supreme Court agreed to grant the order, allowing the law to go into effect until a ruling could be made.
This story has been updated with additional developments.
