The Supreme Court’s Latest Abortion Ruling Is a Cynical Ploy

It’s possible to get confused by the DIG in this case because, although “dismissal” is right in the name, this case is not “dismissed” the way non-lawyers might think it is. The appeal at issue to the Supreme Court was the appeal of the Ninth Circuit’s temporary injunction blocking the Idaho law from taking effect. It’s only that appeal from the blocking maneuver that’s been “dismissed.” The case itself—on whether EMTALA supersedes Idaho’s law—still exists. That case will now be heard by the US Court of Appeals for the Ninth Circuit, eventually the Ninth Circuit will rule, and that ruling will be appealed right back to this Supreme Court. We will probably be exactly here, this time next year, waiting for the court to issue a ruling on EMTALA.

As for the DIG, the actual ruling is a one-sentence, per curiam opinion—“The writs of certiorari before judgment are dismissed as improvidently granted, and the stays entered by the Court on January 5, 2024, are vacated”—but four justices wrote separately to put the ruling in context. Justices Elena Kagan (joined by Sonia Sotomayor) and Ketanji Brown Jackson both wrote opinions basically calling out the conservatives for refusing to apply a straightforward application of federal law. Justice Samuel Alito (joined by Clarence Thomas and Neil Gorsuch) wrote a long and salty dissent essentially excoriating his conservative colleagues for lacking the will to make more women suffer as he would. And Justice Amy Coney Barrett (joined by John Roberts and alleged attempted rapist Brett Kavanaugh) wrote a concurrence attempting to explain why the conservatives granted cert and then ran away.

For those interested in playing inside baseball, I can offer only my speculation as to what happened. My guess, informed by nothing other than my longtime reading of these people and my burning contempt for most of them, is something like this: Thomas, Alito, Gorsuch, and Kavanaugh voted to grant cert. Roberts and Barrett didn’t want to take the case but thought they could get the liberals on board for some kind of narrow ruling allowing Idaho to let women suffer while not totally overruling EMTALA—but the liberals held firm. Then Roberts and Barrett got scared that going with the Ivan Drago “if she dies, she dies” verison of the case cooked up by Alito would cost Republicans in the upcoming election. Barrett then gave them the intellectual framework needed to DIG it and do all the bad things after the election, and Kavanaugh signed on because he is a weak person desperate for mainstream media approval and didn’t want to take away more reproductive rights without Roberts and Barrett covering for him. But, again, I can only guess.

In either event, Barrett’s concurrence is the most important, because she, along with Roberts and Kavanaugh, are the conservatives who likely flipped, and she attempts to explain why. She said that the case has “substantially shifted since we granted certiorari,” meaning that the facts and issues that are in play have changed a lot since the court decided to hear the case at the beginning of the year. The thing is, that’s not really true. The main issue—does EMTALA preempt Idaho’s abortion law?—hasn’t changed one bit.

Still, according to Barrett, there have been changes, and what’s changed is that the government has made “concessions” in its defense of EMTALA that were not evident to her earlier. She writes that the government “emphatically disavowed the notion that an abortion is ever required as stabilizing treatment for mental health conditions…. That is an important concession[.]” The problem is that what Barrett is framing as a “concession” is really just the government knocking down a ridiculous argument advanced by the forced-birth brigade. Christian conservatives argue that sometimes people get abortions because they’re suffering from depression or some other mental health problem, but it was never the government’s position that depression can be addressed with an emergency abortion.

Barrett went on to invent another made-up concession. She said: “Second, the United States clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.” Barrett here is surfacing the conservative obsession with the idea that a doctor could be forced to perform an abortion that violates their religious beliefs, but again, that’s not the law. Doctors, even in emergency situations, have long been given the “conscientious objector” option to not perform care that violates their beliefs, and that ability has always applied to EMTALA cases. (Though I’ll note that I would like to one day live in a country where doctors could not refuse to perform lifesaving procedures based on what they think an invisible man in the sky wants them to do, it’s a well-established legal principle that they can.)

Barrett is literally playing dumb here. She is pretending that the government’s position on these “important” “critical” issues was unknown at the time the court agreed to hear the case, when in fact the government’s position was well-known and well-established at all times throughout the litigation. If anything “substantially changed,” it was, perhaps, only that conservatives thought Solicitor General Elizabeth Prelogar (who happens to be from Idaho) would show up unprepared to answer these ridiculous arguments when instead she showed up like Wonder Woman and deflected the conservatives’ bad-faith questions with her bracelets.

We should dismiss the intellectually dishonest part of Barrett’s opinion, and get to the part where she explains exactly how she’s going to uphold the Idaho abortion ban in the future. She writes that “petitioners [the State of Idaho] have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.”

What Barrett is saying here is that, despite the temporary dismissal of this case, a question remains as to whether Congress can make a national law guaranteeing health care if a state argues that providing that health care is criminal. She’s also saying (with an enormous wink) that it remains a question because Idaho hasn’t made that argument… yet. It’s basically an explanation of how she, Roberts, and Kavanaugh will get around the preemption issue in the future.

And it gets worse. When Barrett and her bretheren get around to issuing that ruling, it won’t be designed just to stop EMTALA from operating in Idaho, it will be designed to stop a national abortion protection law—a so-called “Restoration of Roe”—from operating in America. Barrett is saying that if Democrats win the election and Congress passes reproductive rights legislation, the Supreme Court will strike it down in any state that has criminalized abortion.

If voters understood this, they might just go to the polls and vote for candidates who promise to reform the Supreme Court and stop them from taking away reproductive rights. But if they don’t understand this, they might just stay home and tell themselves “both parties are the same.” Barrett is hiding the ball in plain sight, confident that most people will be so confused by the ruling and think, “Well, it’s just Idaho, who the hell lives in Idaho anyway?” that they won’t see the writing she literally put up on the wall.

Now, I happen to think that voters, and especially women voters, are a little bit more tuned-in than Barrett thinks they are. I think the court’s remedial attempts to chew with their mouths closed for a few seconds before baring their teeth again won’t appease people who care about abortions and women’s health.

The EMTALA ruling wasn’t a victory for reproductive rights but a delaying tactic designed to give the conservatives an opportunity to reload before they continue their assault. Hopefully, voters won’t give these people another full clip. The results would be devastating. The Supreme Court has now told us exactly what it will do next if it is given more ammunition.