Supreme Court dismisses abortion case without answering key question

(The Daily Signal) – In an outcome that shocked court watchers everywhere, the Supreme Court Thursday dismissed a pair of consolidated cases challenging the Biden administration over whether the government could require all federally funded hospital emergency rooms to perform abortions, regardless of any state law to the contrary.

But by punting on the case with a “dismissed as improvidently granted” order, the court left that question—at least for now—unanswered.

In Moyle v. United States and Idaho v. United States, the justices were asked if the Biden administration’s interpretation of the Emergency Medical Treatment and Labor Act, or EMTALA, requiring abortions in emergency rooms was legal.

Congress passed EMTALA in 1986 to address the problem of hospitals refusing to treat indigent patients in emergency rooms. The law requires hospital emergency departments that accept Medicaid funds either to provide available treatment required to “stabilize” a patient’s emergency medical condition or to transfer that patient to another medical facility. Notably, it also requires hospitals to provide stabilizing care to pregnant patients with emergency medical conditions that could harm the health of the mother or her unborn child. 

Idaho’s Defense of Life Act, which was passed in 2022, prohibits abortions except when a physician determines “in his good faith medical judgment … that the abortion was necessary to prevent the death of the pregnant woman.”

The justices were tasked with determining whether Idaho’s law conflicted with EMTALA. The Constitution’s supremacy clause requires that in the event of a clear conflict between federal law and a state law, the state law is preempted by the federal law. The Biden administration had argued EMTALA conflicted with the Idaho law because EMTALA allowed doctors to perform emergency abortions to address risks to a woman’s health (versus addressing something that could kill her), something the Idaho law doesn’t allow. Hence, the government argued that EMTALA preempted Idaho’s pro-life law.

Idaho argued that its law and the federal law are in sync because EMTALA doesn’t mandate a particular treatment for particular medical conditions. The federal law leaves that to doctors, who must exercise their best medical judgment in the context of laws and regulations of the states in which they practice—something already accounted for in the Idaho law.

But after extensive briefing and oral argument—and over the objections of four of the justices—the court issued a per curiam (that is, unsigned) one-sentence order dismissing the case. The order was “inadvertently and briefly uploaded … to the Court’s website” a day before its formal issuance, according to Patricia McCabe, the Supreme Court’s public information officer.

The breach of protocol occurred on Wednesday, and the formal opinion was issued the next day.

The Supreme Court occasionally issues a “dismissed as improvidently granted” order for a variety of reasons, whether procedural (such as when a litigant waives one or more of the key issues for which review was granted) or substantive (such as when the court identifies a policy better left to the political branches, rather than the courts, to decide). And while the order in Moyle v. United States and Idaho v. United States was issued without explanation, the justices’ separate concurring and dissenting opinions provide some insight into their thinking in issuing it.

Justice Amy Coney Barrett wrote a concurring opinion that was joined by Chief Justice John Roberts and Justice Brett Kavanaugh, stating that the “shape of these cases has substantially shifted” since the court first decided to hear them.

She noted that in their briefings and during oral argument, the two sides appeared to have made significant concessions. The government, she stated, appeared to concede that an abortion would not be an appropriate stabilizing treatment for mental health conditions and that EMTALA would not override conscience protections for hospitals and health care providers who refuse to provide abortions based on their sincerely held religious beliefs.

That concession, she wrote, indicated that Idaho’s Defense of Life Act “remains almost entirely intact” and EMTALA would rarely override the state’s law. And, she noted, the state seemed to concede that physicians could administer emergency abortions to stabilize expectant mothers experiencing certain serious medical conditions even if there was no imminent threat to the woman’s life. 

Barrett also stated that issuing the order was appropriate here because of an argument the state had raised for the first time at the Supreme Court: that EMTALA, a statute enacted pursuant to Congress’ spending power that operates solely against private parties, could not preempt state law since the state had never consented to the government’s conditional payment scheme. So, could Congress, in reliance on its authority under the spending clause, obligate recipients of federal funds to violate state criminal law? That was a “difficult and consequential argument.”

“The District Court did not address this issue below—nor did the Ninth Circuit, which we bypassed. We should not jump ahead of the lower courts, particularly on an issue of such importance,” Barrett wrote.

It is unclear how the chief justice and Barrett and Kavanaugh would rule if the issue makes its way back to the high court. 

Justice Elena Kagan wrote a separate concurring opinion that was joined in full by Justice Sonia Sotomayor and in part by Justice Ketanji Brown Jackson. In the portion of the opinion that Jackson did not join, Kagan argued that the dismissal was appropriate, that the court’s order “follows” from the “premise” that EMTALA preempts Idaho’s law when they conflict, and that Idaho’s arguments about EMTALA did not justify its request for emergency relief.

Jackson did, however, join the portion of Kagan’s opinion in which she took direct aim at Justice Samuel Alito’s dissent, writing that regardless of EMTALA’s language concerning the protection of a woman’s “unborn child,” nothing “alters EMTALA’s command when a pregnancy threatens the woman’s life or health.”

Jackson wrote a separate opinion largely to disagree with dismissal of the case. She would have granted relief in favor of the United States because “Idaho law prohibits what federal law requires … under the Supremacy Clause, Idaho’s law is pre-empted.”

It is quite clear that Kagan, Sotomayor, and Jackson would rule in favor of the Biden administration if the case returns to the Supreme Court.

In a scorching dissent, Alito, joined by Justices Clarence Thomas and Neil Gorsuch, disagreed with the order and said he would rule in Idaho’s favor now. He argued that the preemption theory advanced by the United States was “plainly unsound,” and that “far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her ‘unborn child.’”

Even if EMTALA’s text was ambiguous, Alito wrote, Idaho would still prevail as “EMTALA was enacted under the [Constitution’s] Spending Clause, and … conditions attached to the receipt of federal funds must be unambiguous.”

He called the court’s “about-face” in the case “baffling” and accused his colleagues of having “simply lost the will to decide the easy but emotional and highly politicized question that the case presents.”

In reaching the Supreme Court, the state of Idaho had leapfrogged over the U.S. Court of Appeals for the 9th Circuit to seek immediate relief. After the Supreme Court’s dismissal, the case now returns to that appellate court for continued litigation. In the end, the consolidated cases of Moyle v. United States and Idaho v. United States may live to see another day at the high court.

After today, two things remain certain: States will always continue to protect the unborn, and the Biden administration will always work to protect its pet agenda items—like abortion—no matter how ridiculous its underlying arguments and application of the law appear to be.