Supreme Court rules that ER doctors can perform abortions in Idaho, confirming draft accidentally posted online

Protestors demonstrate outside the Supreme Court building for abortion rights on the second anniversary of the decision to overturn Roe v. Wade.
Protesters outside the Supreme Court building on the second anniversary of the decision to overturn Roe v. Wade. (Evelyn Hockstein/Reuters)

The Supreme Court sided with the Biden administration on Thursday when it ruled that emergency room doctors can now perform emergency abortions in Idaho, despite the state's near-total ban on abortion.

The 6-3 decision comes after a version of the opinion was briefly posted to the Supreme Court's website by mistake on Wednesday. It was obtained by Bloomberg Law before it was removed. This is the second time within two years that an abortion-related opinion has leaked.

Following the Supreme Court's Dobbs v. Jackson Women’s Health Organization decision in 2022, the Biden administration argued that, under the federal Emergency Medical Treatment and Labor Act, or EMTALA, doctors must be allowed to provide emergency abortions in cases where a woman is facing serious health risks.

Idaho officials challenged the Biden administration’s decision, saying the federal law conflicts with its state law that bans abortions.

On Thursday, the Supreme Court dismissed an appeal from Idaho. The justices ruled that the court should not have gotten involved so quickly, and did not answer the question of whether the Biden administration's interpretation of federal law conflicts with Idaho's state abortion ban.

The case will now continue to play out in lower courts. And with key questions unanswered, the issue could end up before the Supreme Court again.

Read the Supreme Court ruling here:

🧑‍⚖️ What the justices said

The majority opinion included the high court’s three liberal-leaning justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — as well as Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.

Kagan acknowledged in her concurring opinion that Idaho’s largest emergency services provider has had to airlift women out of state roughly every other week due to the state’s abortion ban. The justices' decision, she wrote, “will prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman’s health.”

Jackson concurred in part, and dissented in part with the decision. “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. This Court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it," she added.

Meanwhile, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

In his dissent, Alito focused on language in the EMTALA that refers to protecting 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 also wrote that “EMTALA obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”

🔎 What the ruling means

While the Supreme Court sided with the Biden administration by dismissing the appeal, it is not considered a win. The question of whether the Biden administration’s interpretation of the federal law conflicts with Idaho’s state abortion ban law was never answered by the justices and remains unresolved. It’s likely the issue will appear again at some point before the high court because the underlying lawsuit will be allowed to continue at the 9th Circuit Court of Appeals, according to the Associated Press.

For now, emergency room doctors in Idaho can perform emergency abortions in Medicare-funded hospitals to protect the life of the mother.

⚖️ What Idaho’s abortion law says

Idaho is one of 14 states with a complete abortion ban in place, with very limited exceptions, which includes when “necessary to prevent the death of a pregnant woman.” Otherwise, anyone who performs the procedure can face criminal penalties, including up to five years in prison, and healthcare professionals risk losing their medical license.