This does sound ominous.
The Supreme Court announced Friday that it would take up a case centered on abortion care in emergency medical situations, leapfrogging the 9th Circuit Court of Appeals, which was scheduled to hear arguments later this month.
The Court will also reimpose Idaho’s abortion ban in emergency room situations, something Republican state legislators had asked the justices to do well over a month ago. It’s an ominous sign for abortion rights supporters, and means that the ban will remain in place until the Court’s final ruling. The case will be argued in the April 2024 session.
The Idaho case, and a mirror one out of Texas, center on whether abortions are part of federally mandated emergency care in hospitals that accept Medicare funding. The Biden Health and Human Services Department had sent out a letter shortly after the Dobbs ruling reminding hospitals that they are required by federal law to perform abortions when they are necessary to stabilize a patient, even in states with bans.
Texas argued that the letter was not simply a reminder of the statute — called the Emergency Medical Treatment and Active Labor Act (EMTALA) — but an unlawful expansion of it. The 5th Circuit Court of Appeals sided with Texas earlier this week, ruling that EMTALA’s “silence” on abortions (though it’s “silent” on nearly all the specifics of what care physicians should provide in these situations) proves that the law does not require physicians to provide abortions — even when the abortions are necessary to the law’s mandate to stabilize the patient.
In Idaho, the Biden administration had sued the state, arguing that its near-exception free abortion ban violated EMTALA’s requirements. The government won at district court, where it got the ban blocked in emergency room situations, and only suffered a brief defeat at the appellate court. There, a 9th Circuit panel composed of three Donald Trump appointees ruled against the government and reimposed the abortion ban. The full 9th Circuit quickly stepped in, agreed to rehear the case, blocked the abortion ban and denied the Republican legislators’ request to lift it again. That’s when the Idaho Republicans went to the Supreme Court.
The Supreme Court likely would have gotten involved in the case eventually, either on appeal from the appellate courts, or to resolve a circuit split, should the 9th Circuit have ultimately ruled differently than the 5th. But the way it did so — skipping over the 9th Circuit and reimposing the Idaho ban for the duration — does not bode well for the Biden administration.
See here and here for some background on the Idaho case, and here for the most recent update on the Texas case. Law Dork goes into the mechanics of this SCOTUS action. This was written the day before SCOTUS took up the Idaho appeal, so adjust verb tenses accordingly.
The Supreme Court has not acted on the request. Meanwhile, briefing continued at the Ninth Circuit, and an 11-judge limited en banc panel of the Ninth Circuit is due to hear arguments in the appeal on Jan. 23.
Then, on Jan. 2, a three-judge panel of the Fifth Circuit — all Republican appointees, including two Trump appointees — ruled in the similar case out of Texas, siding with Texas and against the Biden administration in concluding that EMTALA does not protect abortion care and upholding the injunction against enforcement of the guidance against Texas and two groups of anti-abortion medical providers. The anti-abortion groups are represented by Alliance Defending Freedom — the same far-right Christian legal advocacy organization representing Idaho.
On Jan. 3, Idaho sent the Supreme Court a copy of the Fifth Circuit opinion as supplemental authority, claiming that it “shows that the State of Idaho is likely to prevail on the merits of its appeal.” As such, Idaho Acting Solicitor General Joshua Turner argued, the Fifth Circuit’s decision “underscores the appropriateness of granting” Idaho’s stay request.
Let’s step back here. A conservative state, working in tandem with a far-right legal group, went to federal court in Texas to block narrow federal abortion protections, won at the district court, and won at the most conservative appeals court in the nation. A second state that has lost in court so far, and is also represented by the same far-right legal group, is now using that appeals court decision to tell the Supreme Court that its “interpretation of EMTALA” is “likely to prevail” in court.
Then, Turner goes further, asserting that the Fifth Circuit’s decision provides “additional support” for granting merits review of the Idaho case before the Ninth Circuit even hears the appeal, referred to as certiorari before judgment. The logic here is fuzzy, with Turner asserting that the Fifth Circuit’s merits decision on the guidance and injunction “conflicts directly” with the Ninth Circuit’s decision on whether to grant a stay in the Idaho case while it considers the appeal. (That’s not how it works.)
This is both ordinary and … not.
Filing supplemental authority is ordinary. Using a Fifth Circuit decision to tell the Supreme Court that it “shows” the Supreme Court’s likely outcome is a bit much. Using a Fifth Circuit decision to argue that a shadow docket stay application in another case should be treated as a petition for cert before judgment and that the Supreme Court should just review that case on the merits now is a lot much.
I’m not legally savvy enough to know how concerned to be about this, but anyone with two brain cells to rub together knows what this SCOTUS is about. They now have two major abortion cases on their docket, which if you take them at their word is exactly not what they were wishing for when they wrote the Dobbs opinion. Too bad for them. Whether it’s also too bad for us, we’ll see. As I understand it, the Ninth Circuit has a hearing for their appeal currently scheduled for January 24, but that may get cancelled as a result of this. The AP and the Washington Post have more.