Not Again: SCOTUS Has Another Abortion Ruling Leaked Early, Read It For Yourself
If no one was held responsible last time a major abortion ruling leaked from SCOTUS, goes to reason it would happen again. And now it has. Per reporting from Bloomberg, the Court accidentally posted an as-yet unreleased opinion on its website.
Bloomberg News has reported that the Supreme Court accidentally posted an opinion on the website indicating that the justices are poised to allow emergency abortions to go forward in Idaho. The court’s Public Information Office has indicated that the opinion in a pair of cases, Moyle v. United States and Idaho v. United States, were “inadvertently and briefly uploaded” to the court’s website.
Bloomberg’s Kimberly Robinson, Greg Stohr, and Lydia Wheeler suggest that the court is dismissing the case without ruling on the merits, leaving in place a lower court order that bars the state from enforcing its abortion ban to the extent that it conflicts with a federal law, the Emergency Medical Treatment and Labor Act, a 1986 law that requires emergency rooms in hospitals that receive Medicare to provide “necessary stabilizing treatment” to patients who arrive with an “emergency medical condition.”
After the Dobbs debacle, which wasn’t the first ever leak by the Court but was certainly the most impactful and glaring of at least the modern era, you’d think every level of process would have been double checked for minor things like – and I’m just spitballing here – not posting internal documents on rulings on a public website. While the Court has taken some baby steps into the modern era with technology such as allowing audio of arguments, clearly the internal machinations of the Court need some work.
Most of the discourse over “legitimacy of the Supreme Court” is political in nature and more about driving content of the moment than judicial review. But leaks in major cases, especially abortion cases which are some of the most politically and emotionally charged while dealing with the most private and sensitive of issues, really does do damage beyond just perception and optics. A high court that can’t route documents and deliberate internally without issue begs questioning of everything it does. And rightly so.
The Supreme Court, by design, is nigh untouchable by most things; but self-inflicted wounds upon the Court by the Court itself is not something that can be covered for. It has to be fixed. And the Supreme Court of the United States better fix whatever is going on inside those walls that is allowing such things to happen.
You can read the leaked document for yourself here:
SCOTUS Leak
Whoa, “leaked”?Report
The story here is that it has now become a standard opinion on the right that women should be allowed to die rather than be given abortions.
What was once declared indignantly as a baseless smear is now their proud platform.Report
But Chip, don’t worry about them coming for same-sex marriage. That’s settled law.Report
To me, this looks like a technical mistake rather than an intentional leak. It was accidentally posted one day before the actual release of the finished ruling with the concurring and dissenting opinions.
Note that the per curiam ruling is to dismiss, which has the effect of, for now, reinstating the preliminary injunction. Note also the 3-3-3 split (with Jackson staking out a slightly different bit of reasoning than her Sisters in the liberal bloc).
But reporting that this decision resolves the issue in Idaho is incorrect, or at best deceptive. Enforcement of the state law is enjoined for now. The issue of whether the federal law, EMTALA, pre-empts the state law is not yet formally resolved. There’s no guarantee that by the time this case works its way back up to SCOTUS on full review that the Nine won’t resolve the matter on a permanent basis in Idaho’s favor.
The Barret concurrence, for the Roberts bloc, appears to suggest that she, the Chief and Justice Kavanaugh want to see more development of evidence since the Idaho Supreme Court put a very moderately softening gloss on the language of the state statute. That’s why they voted with their more liberal Sisters in the result of letting the injunction against state law enforcement reinstate — so that the new interpretation of the state law by the state court system can get hashed out by the District Court. Even if the state supreme court’s gloss is a bit, shall we say, extra-textual.
But there’s no reason to think the Roberts bloc won’t work hard to find a way to reconcile the state law with the federal law. Because maybe there will be political changes at the federal level resulting in new guidance to Idaho hospitals and courts about how EMTALA applies in Idaho, depending on events scheduled to occur in about four months. (Justice Jackson writes separately to say she is NOT going to be buying THOSE moldy blueberries — the state law and EMTALA are in direct, irreconcilable conflict.)
So for now, turn the heat down on having another abortion decision, folks. Make it look like we’re actually very moderate and balanced as we approach this issue. As opposed to, say, our Brother Justice Alito, who on Page 19 writes of “The Members of this Court are not physicians and should therefore be wary about expressing conclusions about medical issues” and proceeds to spend the next three pages of his opinion doing exactly that with respect to a hypothetical situation involving a preterm prelabor rupture of membranes, ultimately saying that the Idaho law does indeed conflict with Federal law in that Federal law requires a termination in that event and Idaho law prohibits it — and which by all reasonable predictions, his future ruling that Idaho law does indeed pre-empt the federal law and Idaho can forbid an abortion in such a circumstance.* It’s as nakedly political as I can recall the Court being.
The big point being, this opinion was not leaked, and this case is not over.
* Personally, I’m of the opinion that Alito is hoping that a future HHS secretary in a Second Trump Administration will come along and relieve him of the odious duty of actually making that ruling, but it’s also clear enough to me that he’s prepared to render it if need be against a future Second Biden Administration.Report
To me, this looks like a technical mistake rather than an intentional leak.
This was my immediate thought.
Over at SCOTUSBlog today, one of the commenters asked if the clerks were working 24-hour days at this point. My thought on that was no, probably not, but 18 hours, sure. When I worked for the legislative budget committee in my state, the end of the session was insane. The last crush of bills, and amendments, and while all of those were in a management system, a single mistyped date/time or wrong key press could release something too soon. And staff was always short on sleep the week leading up to it.Report