The Behind the Scenes Wrangling in the Idaho Abortion Case

CNN’s Joan Biskupic has an inside report on what happened at the Supreme Court behind-the-scenes in Moyle v. United States. The case had presented the question whether EMTALA preempts state laws, such as Idaho’s Defense of Life Act, that prohibit abortion. The case was ultimately dismissed as improvidently granted, and the stay of a lower court judgment against Idaho was lifted.

From Biskupic’s report:

In January, the court took the extraordinary step of letting Idaho enforce its ban on abortion with an exception only to prevent the death of a pregnant woman, despite an ongoing challenge from the Biden administration arguing that it intruded on federal protections for emergency room care.

No recorded vote was made public, but CNN has learned the split was 6-3, with all six Republican-nominated conservatives backing Idaho, over objections from the three Democratic-appointed liberals.

Oral argument in the case was a bit of a mess. There was confusion over what precisely the Idaho law did or did not allow, and the extent of asserted preemption under EMTALA. Further, a weighty constitutional question (whether an exercise of the spending power can preempt state law) lurked in the background. This apparently convinced some of the justices that Moyle was not the clear case they had thought it might be.

According to Biskupic, Chief Justice Roberts refrained from assigning opinion-writing duties at the conference after oral argument, as there may not have been a clear majority disposition.

From Biskupic’s report:

Judging from the public arguments alone, there appeared a chance the court’s four women might vote against Idaho, and the five remaining conservatives, all men, in favor of the state and its abortion prohibition.

But at the justices’ private vote two days later, Roberts and Justice Brett Kavanaugh shattered any split along gender lines. They expressed an openness to ending the case without resolving it.

They worked with Barrett on a draft opinion that would dismiss the case as “improvidently granted.”

Barrett had come to believe the case should not have been heard before lower court judges had resolved what she perceived to be discrepancies over when physicians could perform emergency abortions, even if a threat to the woman’s life was not imminent.

She would eventually deem acceptance of the case a “miscalculation” and suggest she had been persuaded by Idaho’s arguments that its emergency rooms would become “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.” She believed that claim was undercut by the US government’s renouncing of abortions for mental health and asserting that doctors who have conscience objections were exempted.

Ultimately, Biskupic reports, there was a draft majority opinion on behalf of Roberts, Kavanaugh, Barrett, Kagan and Sotomayor, and dissents from the left (Jackson) and the right (Alito, Thomas & Gorsuch). This line-up effectively prevailed as the Court DIGged the case, over a dissent by Justice Alito (joined in part by Thomas and Gorsuch) and a partial dissent by Justice Jackson. Justice Kagan (joined by Sotomayor in full and Jackson in part) and Justice Barrett (joined by Roberts and Kavanaugh) wrote concurrences.

In Justice Kagan’s view, based on remarks last week, the justices may have learned a “good lesson” from the case. From Biskupic’s prior report:

The justice went on to say that the court may have learned “a good lesson” this session when it agreed to hear oral argument in an abortion dispute that arose from its emergency docket only to later say it had improperly granted review in the matter.

“And that may be as a good lesson for us to sort of say as to some of these emergency petitions, ‘No. Too soon, too early. Let the process play out,’” she said.

I suppose some might suggest the Court’s decision to DIG the case reflects a lack of spine or fortitude. To my mind, a judge shows spine and fortitude when they act as a judge, even at the risk of disappointing their friends and allies. In the current environment, that shows more courage than refusing to succumb to the “Greenhouse effect.” A stalwart judge should never forget that they are tasked to exercise judgment instead of will, and the proper exercise of judgment will not always produce the political or policy outcome that partisans might prefer.

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