Given the astonishing breadth of the decisions handed down on the Supreme Court’s final day of its term, it’s easy to overlook the decision that had no breadth at all, since it was a decision not to issue a ruling.
I am referring to the fact that the courts have dismissed cases in Idaho that questioned whether it violates federal law to prohibit hospitals from providing emergency abortions to women whose pregnancies pose a significant threat, not necessarily to their lives, but to their health, including their future fertility.
Last Thursday, nine weeks after argument, the court dismissed the case for “frivolous admission,” meaning that upon reflection, the court should never have accepted the case for review. The case in lower federal court was about Idaho ignoring federal law. The case was sent back to the status quo before the Supreme Court stepped in on behalf of the state, and was sent back to the lower court.
This unexpected development obviously pales in importance in comparison to the Supreme Court’s aggressive dismantling of the administrative state and its generous granting of virtual immunity to Donald Trump. The dismissal of a case, which may occur once or twice a term, carries no formal precedent and usually no significance whatsoever. But the fate of this particular case, Moyle v. United States, seems to me to say a lot about the Supreme Court at a very tense time. The brief period that this case was on the Supreme Court docket offers a glimpse into internal tensions at the Court that reveals more than the carefully polished opinions the Justices typically deliver.
In every respect, Moyle represents a staggering institutional failure. The Court’s acceptance of the case was irregular from the beginning. The justices removed Idaho’s appeal from the court’s “shadow docket,” which arrives not as a regular request for review but as an emergency request for some kind of emergency relief. Idaho sought a stay of a federal district judge’s injunction that barred the state’s recently enacted abortion ban from applying to women who are forced to end their pregnancies for emergency health reasons.
While Idaho’s defense of life law allows abortion only to save a woman’s life or in cases of rape or incest, federal emergency medical procedures and labor laws require hospitals to provide medically indicated emergency treatment for any condition, either by treating the patient in an emergency room or arranging for transfer to another hospital. The federal district court ruled that in these circumstances, the 38-year-old federal law supersedes Idaho’s abortion ban.
The U.S. 9th Circuit Court of Appeals refused to lift the district court’s injunction but agreed to hear the state’s appeal. Then, just weeks before the case was scheduled to be heard, the Supreme Court suddenly stepped in, lifting the injunction itself and agreeing to hear Idaho’s case, bypassing the appeals court, a process known as “pre-judgment appellate review.”
Rule 11 of the Supreme Court Rules provides that a petition for pre-judgment certiorari may only be granted if “a case is shown to be of such urgent public importance that it justifies a departure from normal appellate practice and requires immediate decision by this Court.” What was the urgent public importance? Idaho told the Supreme Court that the district court had turned the health law into “a federal extrajudicial measure on abortion issues, usurping Idaho’s sovereign interest in protecting innocent life.” The injunction “turns emergency rooms into federal enclaves where state standards of care do not apply,” the state said in its emergency petition. The state argued that the Biden administration, which sued the state for violating federal law, seriously misinterpreted the law.
It’s a sophisticated document, written with the help of lawyers from Alliance Defending Freedom, a Christian litigation group that has had remarkable success at the Supreme Court and knows what buttons to push to impress justices attuned to the language and goals of conservative social movements. Five votes, rather than the usual four, are needed to grant leave to appeal before a ruling. It’s highly likely that Justice Samuel Alito, who wrote the Dobbs v. Jackson Women’s Health Organization decision 18 months ago that stripped away the constitutional right to abortion, has found enough colleagues who, like him, get the state’s message: that the case is an attempt by the Biden administration, backed by liberal justices (Judge B. Lynn Winmill, who issued the injunction, was appointed by President Bill Clinton), to sidestep Dobbs.
And the Court recklessly and prematurely asserted jurisdiction over a case that was still in the early stages of an appellate process that was supposed to provide much-needed clarity about how Idaho law works and what the federal government requires. It was the lack of that clarity that ultimately doomed the case.
While I cannot prove that Justice Alito played a leading role in the decision to accept the case, the evidence for my theory is clear from the text of his dissent to dismiss. Joined by Justices Clarence Thomas and Neil Gorsuch, he wrote that “shortly before Idaho’s law was to take effect, President Biden directed members of his Administration to find ways to limit Dobbs’ influence.” It is strident and highly politicized to find such an opinion in a judicial opinion. His 25-page dissent shows all the evidence that it was drafted as a majority opinion but failed.
How could that have happened, given that the Court had at least four other cooperators at the time it accepted the case? Part of the answer is that he overstepped his authority. The decision seems to let Justice Alito’s ego run wild, almost insane in places. Justice Alito dissented from both the Court’s dismissal of the case and its decision to reinstate the injunction blocking Idaho’s law, writing that the latter measure “will likely lead to an increase in abortions, including in cases where the fetus is viable.” In his 25-footnote opinion, he provides no citations or evidence for these inflammatory comments.
The federal law contains several references to protecting the “fetus.” Read in context, these clearly refer not to abortion but to hospitals’ obligations to treat women in labor or fetuses when they are “at risk.” Justice Alito reads the law as actually banning abortion, but in a way that is so out of context that it amounts to gaslighting. “Needless to say, aborting a ‘fetus’ does not protect it from risk,” he wrote. In an article published in Slate on Tuesday, legal scholars Reba B. Siegel and Mary Ziegler noted that “on Alito’s reading, the law presents a kind of fetal personhood that renders the pregnant patient’s personhood invisible.”
Among those who dissented were fellow conservative Chief Justice John Roberts, Justice Amy Coney Barrett, and Justice Brett Kavanaugh. Justice Barrett spoke for all three and explained her reasons for dismissing. In contrast to Justice Elena Kagan’s opinion, which wrote that the Court’s intervention in Idaho’s case was “never justified,” Justice Barrett’s tone was apologetic and somewhat embarrassed, appropriate for a justice who would likely have voted to hear the case. The decision to take on the case was a “miscalculation” and “has proven unwise,” Justice Barrett wrote, explaining that the case looks different now than it did in January, before the parties filed briefs and appeared before the Court for oral argument. Perhaps the Court should have looked more closely before taking on the case from the Ninth Circuit.
Judge Barrett’s doubts about proceeding with the case were not surprising. When the case was argued in April, she grilled the state’s attorney, Joshua Turner, at one point saying she was “kind of shocked” that Turner had been vague about the seriousness of circumstances that would allow an Idaho doctor to perform an abortion without prosecution. It was as if the implications of the position she had taken had just hit her hard: that a woman at risk of permanent damage from her pregnancy would be flown out of Idaho to get the abortion she desperately needs. It’s nice to think that Justice Alito cares about women as much as the unborn. Justice Barrett was his silent partner in Dobbs. Now we’re beginning to hear her voice.
When the Supreme Court rejected the Idaho case, some on the left scoffed, suggesting that the conservative justices might have simply wanted to avoid another unpopular abortion decision in an election year. Justice Alito himself seemed to say as much in his dissent, complaining that “apparently the Supreme Court has simply lost the will to decide the simple but emotive and highly politicized issue this case raises.” I don’t think so. The obvious mishandling of the case was too embarrassing a price to pay to protect Republican officeholders from an anti-abortion backlash.
It would be foolish to assume that there is confusion in their camp after a week in which the Supreme Court’s conservatives have heard the flagship case on their agenda in lockstep, but the anxiety is palpable. And as more abortion cases make their way to the Supreme Court, this case may soon be relegated to a footnote, a curious sideshow.
But it matters now. It matters that Samuel Alito’s abortion obsession may have led him to bend the normal rules and get other justices to follow suit. It matters that some of the other justices jumped the train. If they learned something along the way, it may offer a ray of hope at the end of this depressing Supreme Court term.
Linda Greenhouse, a 1998 Pulitzer Prize winner, covered the Supreme Court for The Times from 1978 to 2008 and was a contributing opinion writer from 2009 to 2021.
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