Doctors join abortion rights supporters

Doctors join abortion rights supporters at a rally outside the UU.S. Supreme Court on April 24, 2024 in Washington, D.C.

(Photo: Andrew Harnik/Getty Images)

Supreme Court 'Inadvertently' Posts Draft Decision for Emergency Abortions Case

One expert said the theme of both abortion cases this term is "kicking the can down the road—and significantly, until after a major election."

A U.S. Supreme Court spokesperson confirmed an opinion that would allow emergency abortions in Idaho despite its strict ban was accidentally shared Wednesday on the website—from which the full text was copied by Bloomberg before it was taken down.

"The court's Publications Unit inadvertently and briefly uploaded a document to the court's website," said Patricia McCabe, the court's public information officer. "The court's opinion in Moyle v. United States and Idaho v. United States will be issued in due course."

After the high court's right-wing supermajority reversedRoe v. Wade two years ago with Dobbs v. Jackson Women's Health Organization, several states including Idaho further restricted abortion care. This case centers on the Emergency Medical Treatment and Labor Act (EMTALA), a federal law requiring emergency departments that accept Medicare to provide patients with "necessary stabilizing treatment," which the Biden administration argues includes abortions.

The text obtained by Bloomberg suggests that the justices will issue a 6-3 decision—with Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissenting—that reinstates a district court order ensuring hospitals can perform emergency abortions in the state if the pregnant person's health is at risk while litigation proceeds to a federal appeals court.

"Victory will only happen when abortion is completely legal, available, and accessible for everyone, everywhere in the country."

This will be the Supreme Court's second abortion-related decision this term; earlier this month, the justices unanimously agreed to preserve access to mifepristone, a medication commonly used for abortion care. In response to the first ruling, Destiny Lopez, acting co-CEO of the pro-choice Guttmacher Institute, said that "we are relieved by this outcome, but we are not celebrating."

Liberal Justice Ketanji Brown Jackson wrote in the text obtained by Bloomberg that "today's decision is not a victory for pregnant patients in Idaho. It is delay. 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. The court had a chance to bring clarity and certainty to this tragic situation, and we have squandered it."

Reproductive Freedom for All president and CEO Mini Timmaraju said in a statement Wednesday that "we agree with what Justice Ketanji Brown Jackson reportedly said—this is not a victory but a delay. The abortion bans that are putting people's lives on the line in the first place will continue to remain on the books."

Fatima Goss Graves, president and CEO of the National Women's Law Center, said that "while we await the final decision in what should be an open-and-shut case, we are furious that this draft appears to leave the door open for the Supreme Court to end emergency abortion care in the coming months or years."

"It is unconscionable that this court would allow the continued suffering of patients who need emergency care now," she asserted. "It is only a small measure of justice that for now people in Idaho can continue to access the care that they need—victory will only happen when abortion is completely legal, available, and accessible for everyone, everywhere in the country."

Legal historian Mary Ziegler wrote on social media that "I worry that this will be reported as a big win for abortion rights. The litigation will continue if this is the final decision. The theme of both cases this term is that SCOTUS is kicking the can down the road—and significantly, until after a major election."

Reproductive freedom is a key issue in elections at all levels of government this cycle, including the race for the White House. Democratic President Joe Biden, who supports abortion rights, is set to face former Republican President Donald Trump, who has bragged about appointing three of the six justices responsible for the Dobbs ruling—which, notably, was leaked nearly two months before its official release.

"We're grateful that the Biden administration is fighting to preserve the shreds of access possible in states where anti-abortion extremists are doing everything in their power to block people from the care they need, even under the most dire of circumstances," said Timmaraju.

"We won't forget who is responsible for these bans—Donald Trump and the MAGA Republicans who enabled him," she added. "Our rights are on the line, and we must send President Biden back to the White House to restore the federal right to abortion and end these bans once and for all."

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