Supreme Court Dodges Major Abortion Case

The Supreme Court has dismissed, as improvidently granted, the petition for certiorari in an EMTALA abortion case out of Idaho, Moyle v. United States. The Court also vacated its previous stay of the district court’s injunction, which had enjoined Idaho from prohibiting abortions allegedly required by EMTALA. The Court split 3-3-3, so some explanation of what happened is needed.

EMTALA stands for the “Emergency Medical Treatment and Labor Act.” EMTALA prevents emergency rooms (ERs) in hospitals that receive federal funding from “dumping” patients without stabilizing their medical conditions. The law specifically directs care, where applicable, for both the pregnant woman and her unborn baby. Yet in the aftermath of the Dobbs decision overruling Roe v. Wade, the pro-abortion Biden Administration creatively seized upon EMTALA as a tool for foisting abortion back onto states that outlawed the killing of babies before birth.

The federal government then sued Idaho to test its theory that ERs must perform abortions even in pro-life states. The theory of the Biden Administration is that EMTALA requires abortions when supposedly needed to stabilize a woman’s “health” and that, as a federal law, EMTALA “preempts” or displaces any contrary state law. The ACLJ filed an amicus brief opposing the federal lawsuit, but a federal district court bought the federal government’s theory and issued a preliminary injunction against Idaho. Idaho appealed and sought an emergency stay of the injunction. The lower federal courts ultimately denied a stay, but then the U.S. Supreme Court granted Idaho’s stay request and agreed to hear the case, skipping past the federal appeals court (here, the Ninth Circuit).

We again filed an amicus brief in support of Idaho.

The Supreme Court in due course heard oral argument, during which the Biden Administration somewhat surprisingly backpedaled on its position. Idaho also backpedaled somewhat, to the point that it became unclear just how much disagreement there was between the parties over what abortions would or would not be allowed and under what emergency circumstances. That lack of clarity, it turns out, was enough to prompt the Court to dismiss the case from its docket.

As noted above, the Court split 3-3-3. At one end, Justice Kagan, joined by Justice Sotomayor and, in relevant part, by Justice Jackson, said that EMTALA preempts Idaho abortion restrictions in case of conflict, and so Idaho should lose. On the other end, Justice Alito, joined by Justice Thomas and in relevant part by Justice Gorsuch, said EMTALA does not preempt pro-life laws – indeed, could not sensibly be read to do so, given EMTALA’s express concern for unborn children – and so Idaho should win. Meanwhile, breaking the tie but not deciding the issue, Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, said that the Court should not decide the EMTALA issue at all, primarily because the points of disagreement between the parties had dramatically shrunk, simultaneously reducing any harm to Idaho. As these Justices explained (pp. 7–8):

Idaho represents that its [life-of-the-mother] exception is broader than the United States fears, and the United States represents that EMTALA’s requirement [to provide abortions] is narrower than Idaho fears. That matters in assessing Idaho’s irreparable harm for purposes of the stay. The dramatic narrowing of the dispute—especially the Government’s position on abortions to address mental health and conscience exemptions for healthcare providers—has undercut the conclusion that Idaho would suffer irreparable harm under the preliminary injunction. Contrary to Idaho’s concerns at the stay stage, the Government’s interpretation of EMTALA does not purport to transform emergency rooms into “federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States’s mandate to perform abortions on demand.” Stay Reply Brief in No. 23A470, p. 6 (citation omitted). Nor does it purport to deprive doctors and hospitals of conscience protections. Cf. id., at 15. Thus, even with the preliminary injunction in place, Idaho’s ability to enforce its law remains almost entirely intact.

That last line is crucial: “Idaho’s ability to enforce its law remains almost entirely intact.” That fact prompted Justice Jackson, in a separate opinion, to state, “Today’s decision is not a victory for pregnant patients [sic] in Idaho.” She is wrong. Stopping abortions means protecting both babies and their mothers. But she is right in what she meant to say: The ruling in Moyle v. United States is no victory for abortion or the Biden Administration’s pro-abortion contortion of EMTALA.

 The case now goes back to the lower federal courts.