SCOTUS Mistakenly Posts A Draft Opinion With A Surprising Conservative Split

The Supreme Court’s behind-the-scenes administrators confessed Wednesday that someone “inadvertently and briefly uploaded” a draft opinion, prematurely making public a decision that would dismiss on technical grounds a case that stems from Idaho’s abortion ban.

The draft, which Bloomberg Law was first to report, would reinstate a lower court order allowing abortion under emergency circumstances. It kicks the can on an important abortion decision but would be, for now, a win for the Biden administration.

Bloomberg managed to grab a copy of the draft when it was briefly online, a snafu that occurred while the court was issuing two other opinions. The document indicated the court is poised to rule 6-3 to lift a stay it had placed on a lower court order; that order had allowed federal regulations to remain in place while legal challenges played out. That means emergency room doctors would be able to continue to perform abortions in the case of a medical emergency to protect the life and health of the pregnant woman, once the decision is officially released (if this is, in fact, the final draft).

“The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website,” Patricia McCabe, the court’s public information official told Bloomberg. “The Court’s opinion in Moyle v. United States and Idaho v. United States will be issued in due course.”

If the draft opinion is final, it appears that conservative Justices Amy Coney Barrett, Brett Kavanaugh and Chief Justice John Roberts will join the liberal justices in dismissing the case. Barrett wrote the majority opinion, which was joined by Kavanaugh and Roberts in full. Justice Elena Kagan penned a concurring opinion, joined in full by Justice Sonia Sotomayor and in part by Justice Ketanji Brown Jackson. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented in this version of the opinion.

But many questions linger over the whole case. The draft ruling would dismiss Idaho Republicans’ appeals of the preliminary injunction issued by the federal district court — a case that was brought about when the Biden administration sued Idaho for its abortion ban, arguing that the ban violated the federal Emergency Medical Treatment and Labor Act (EMTALA) — rather than ruling on the merits. Congress passed EMTALA in 1986; it requires that hospital emergency rooms provide life-saving and stabilizing care, which, in some cases, will mean inducing abortions.

The potential ruling is, for this reason, not necessarily a win for abortion rights. It’s not necessarily a win for either side. It does not clear up the issues around EMTALA and Idaho’s abortion ban in a full-throated way. As Jackson wrote in her concurrence: “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,” she wrote, per the draft ruling published by Bloomberg.

The court similarly avoided ruling on merits in another recent abortion case, preserving full access to the abortion drug mifepristone, arguing the anti-abortion doctors who brought the case lacked legal standing. That means we are heading into an election in with access to abortion is on the ballot with the court seeming — perhaps deceptively — to have moderated on the issue.

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