Bloomberg: Supreme Court appears to side with Biden admin in abortion case, according to draft briefly posted on website

The Supreme Court appears poised to temporarily allow abortions in medical emergencies in Idaho, Bloomberg News reported Wednesday, citing a document that was inadvertently posted on the court’s website in an astonishing breach of protocol.

The unsigned opinion showed that three conservatives – Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – sided with the court’s three liberals to block the state from enforcing the ban in certain emergency situations.

The court acknowledged a document was briefly posted, but stressed that no opinion is final until announced by the justices. The abortion case is considered among the most significant of the current term that is winding down ahead of the July 4 holiday.

It’s the second time in two years that a major decision dealing with an abortion case has been prematurely released. Two years ago, Politico obtained a draft of the high court’s opinion overturning Roe v. Wade – a document that was substantially the same as the final opinion the court released weeks later.

At issue is Idaho’s strict abortion ban, which provides an exception for the life of the pregnant woman. The Biden administration argued that a federal law also requires hospitals to perform abortions in cases where the health of the pregnant woman is at stake.

The decision means that an order from a trial judge that had blocked enforcement of Idaho’s abortion ban in medical emergencies would go back into effect while the case continues to be argued in lower courts. Such a ruling is a temporary win for the Biden administration and will be a relief to Idaho women who fear medical complications from their pregnancies could jeopardize their heath.

But it would leave unresolved the central question of whether federal law protects access to abortion in medical emergencies, and it is not likely to end the precariousness and uncertainty that doctors have felt about how to navigate strict abortion bans while caring for their patients.

“If the reporting is accurate, this would be a significant but temporary victory for the Biden administration,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

A Supreme Court spokeswoman, Patricia McCabe, confirmed that a “document” was “inadvertently and briefly uploaded” to the court’s website. She stressed that the opinion in the case “has not been released” and would be “issued in due course.”

Here’s what to know about what happened Wednesday:

Where the conservatives and liberals agreed

The copy reviewed by Bloomberg showed the court voting 6-3 to allow the emergency abortions to take place in Idaho on a temporary basis while the case continues.

But they did so for slightly different reasons.

The court’s three liberals argued in a concurrence by Justice Elena Kagan that the court erred when it allowed the state to enforce the law temporarily while the Supreme Court considered the case. The state ban, Kagan wrote, “prevents hospitals from doing” what the federal law commands. The decision “will again give Idaho women access to all the needed medical treatments that EMTALA guarantees.”

Justice Amy Coney Barrett, in a separate concurrence joined by Chief Justice John Roberts and Justice Brett Kavanaugh, made a slightly different point. Barrett argued that Idaho appears to be able to enforce its ban “in the vast majority of circumstances.”

Barrett’s point is that she doesn’t believe there’s a significant conflict between the Biden administration and Idaho because of changes that were made to the Idaho law as the litigation unfolded.

The Department of Justice and the White House declined to comment on Bloomberg’s story and the mistakenly posted document until the Supreme Court’s official opinion is released.

Justice Ketanji Brown Jackson agreed with the decision to temporarily block enforcement of the Idaho ban but she dissented from the court’s decision to dismiss the case.

Liberals and abortion-rights groups worry about the future case

How abortion bans have been playing out in medical emergencies has emerged as a particularly explosive political flashpoint in the fallout of Roe v. Wade’s reversal. The Idaho ban at issue allowed abortions if a pregnant woman’s life was at stake, but not her health. Six states have bans like Idaho’s that include no exception for the health of a pregnant woman, the Justice Department has said, though several of those laws are the subject of litigation.

The Biden administration argued Idaho’s ban could force patients to, for instance, endure hysterectomies and other lifelong complications if doctors declined to provide an abortion in the emergency room.

A US District Court in Idaho last year blocked enforcement of the state law. A three-judge panel of the 9th US Circuit Court of Appeals paused that decision, allowing the law to take effect. Weeks later, the full 9th Circuit reversed the panel’s decision, putting enforcement of the law on hold again. In January, the Supreme Court agreed to decide the case and allowed the state law to take effect while it did so.

Abortion-rights groups have been careful not to celebrate the finding in the document, instead saying that the justices’ ruling would merely delay a future decision that may restrict abortion access in emergency situations.

Jackson wrote separately to say that she wouldn’t have dismissed the case.

“Today’s decision is not a victory for pregnant patients in Idaho. It is delay,” she wrote. “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.”

It was particularly wrong, Jackson said, because the court had for months allowed Idaho’s strict abortion law to remain in effect.

“It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened,” Jackson wrote.

The Justice Department sued Idaho over its abortion ban in August 2022, a few weeks before it was scheduled to take effect. It argued that a federal law known as the Emergency Medical Treatment & Labor Act – or EMTALA – required hospitals that receive Medicare funding to offer the procedure in medical emergencies. The law, passed in 1986, requires those hospitals to provide “stabilizing” treatments for emergency room patients who are facing serious harm to their bodily functions.

Congress enacted EMTALA to stop hospitals from turning away patients who could not afford their care. The law does not specify which procedures hospitals must perform to stabilize patients and Idaho accused the Biden administration of wrongly interpreting the Reagan-era law to “create a nationwide abortion mandate in hospital emergency rooms.” The state also argued that changes to the abortion law since its enactment meant doctors could adhere to EMTALA and the ban simultaneously.

Idaho’s law makes it a felony to perform an abortion, punishable by up to five years in prison. Doctors can also lose their medical licenses.

“The U.S. Supreme Court had the opportunity to be clear that the federal EMTALA law protects the right to abortion in an emergency in every state … and they chose not to,” said Planned Parenthood Federation of America President and CEO Alexis McGill Johnson in a statement to CNN.

Interpretation of ‘unborn child’ is left for another day

At oral arguments on April 24, several members of the court’s conservative majority expressed skepticism of the Biden administration’s position, with some justices framing the case as a federal encroachment on state powers to regulate medicine.

Republican-appointed justices also zeroed in on amendments Congress made to the federal law in 1989 that added language about a pregnant woman’s “unborn child” to its protections. Idaho argued it was nonsensical that a law referencing protections for an unborn child would require hospitals to offer abortions.

A dissent written by Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, embraced an argument put forward by Idaho and its supporters in their efforts to defend the state’s strict ban on abortion. Alito said the law provided for the “express protection of the unborn child.“

“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,’” Alito wrote.

He later added that “EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”

Kagan, in parts of her concurrence that were joined by both Justices Sonia Sotomayor and Jackson, disagreed. She said three of the statute’s four references to an “unborn child” have to do with how hospitals handle transfers of women in labor, and thus were not related to the types of emergency pregnancy complications at issue in this case.

The fourth provision, Kagan wrote, “ensures that a woman with no health risks of her own can demand emergency-room treatment if her fetus is in peril.”

She added, “It does not displace the hospital’s duty to a woman whose life or health is in jeopardy, and who needs an abortion to stabilize her condition,” Kagan said.

Abortion rights advocates countered that that was not Congress’ intent, and worried that the conservative Supreme Court would read fetal personhood into a federal statute for the first time ever.

For now, it is unclear whether either interpretation is accepted by a majority of the high court.

More major abortion case drama

For the second time in two terms, the public learned of where the Supreme Court was headed in a major abortion case before the justices had formally handed down their ruling, spoiling the court’s highly controlled protocols around the release of opinions.

On opinion days, the Supreme Court traditionally begins at 10 a.m. ET and reads any opinions it will release in order in terms of seniority — from most-junior to most-senior.

Any per curiam opinions — majority decisions that are unsigned — would be at the end.

They are announced from the bench and simultaneously handed out to reporters in the press room in print and posted online. The difference Wednesday was that the opinion was mistakenly posted online and it wasn’t announced from the bench and printed copies were not present.

The decision came days after the Supreme Court unanimously rejected an effort by anti-abortion groups to limit access to the abortion pill mifepristone. The court ruled that the groups that challenged access to the drug did not have standing to sue, a technical decision that does not foreclose the possibility that others might.

This story has been updated with additional developments.

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