For the second time in two years, an abortion-related decision from the Supreme Court has appeared before its due date. Unlike the Dobbs decision overturning Roe v. Wade, leaked by a person or persons still unknown, the latest case, about Idaho’s abortion ban, got out by accident when someone at the court briefly posted the opinion on the court’s website. Eagle-eyed Bloomberg Law reporters noticed.
While the opinion isn’t official as of this writing, here are the major takeaways from the inadvertently shared Moyle v. United States.
The case hinged on a conflict between Idaho’s ban, which criminalizes abortion unless it is necessary to save the mother’s life, and a federal law called the Emergency Medical Treatment and Active Labor Act. The law says that hospitals that receive Medicare dollars must provide “stabilizing” treatment in cases of medical emergency. The Supreme Court had decided to hear the case on an expedited basis, even before the lower courts had the chance to consider all the details.
The document makes clear that the court’s three more moderate conservatives — Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh — are set to reverse course on that expedited timeline. They would send the case back to the lower courts, vacating a lower court order that had blocked EMTALA from operating in Idaho.
The result is that, in the short term at least, Idaho emergency rooms should be able to perform abortions in cases where they are necessary not only to protect the mother’s life, but also, in some cases, the mother’s health.
Judicial revolution
Justices Elena Kagan and Sonia Sotomayor provided the two votes necessary for that to happen. Kagan wrote an opinion arguing that Idaho’s claims to be exempt from EMTALA were wrong and never deserved expedited consideration.
Conservative justices Clarence Thomas and Neil Gorsuch joined an opinion by Justice Samuel Alito strongly hinting that the moderate conservatives had wimped out and did not want to decide an abortion case before the presidential election. The three arch-conservatives would have decided the case in Idaho’s favor.
Barrett, who is emerging this term as a powerful moderate-conservative figure on the court, wrote the short opinion explaining why she, Roberts and Kavanaugh had changed their minds about taking the case on an expedited basis.
Barrett concluded that while federal and state law differ, they may not actually be in conflict, and therefore the case did not deserve the kind of emergency treatment the Supreme Court had decided to give it. She left open the possibility of revisiting the potential conflict between the laws, especially regarding the question of whether a federal law could require violation of a state law.
On its own, the outcome is only a very small and perhaps temporary win for abortion rights advocates. At least Idaho can’t get another emergency order blocking the federal law from applying while its lawsuit proceeds. But Dobbs remains in place, as do the extreme state abortion bans that Dobbs rendered lawful.
Yet at the same time, as Alito’s frustration shows, the decision marks a meaningful recognition by the moderate conservatives that they are not on a crusade to wipe out abortion everywhere in the country. In this way, the decision echoes the court’s mifepristone decision — and with a similar, although not identical, lineup of votes.
The conservative judicial revolution is here to stay. But the conservative revolution at the Supreme Court isn’t gathering steam anymore, at least not when it comes to abortion. And at least not in a presidential election year.
Noah Feldman is a Bloomberg Opinion columnist and a law professor at Harvard University.
