The Supreme Court’s New Leaked Abortion Draft Reeks of Cynicism (2024)

On Wednesday morning, the Supreme Court inadvertently released a draft of its decision in Moyle v. United States, a major case about emergency abortions. First obtained by Bloomberg News, the draft shows the court planning to punt the case, sending it back down to the lower courts without any decision on the merits. It also reinstated an injunction requiring Idaho to permit abortions in the case of major health crises.

This outcome reeks of a cynical compromise, secured by the more tactical conservative justices, to push this explosive issue past this fall’s election. The Republican Party’s position—that states may force patients to the brink of death before allowing them to terminate a failing pregnancy—is politically toxic. A Supreme Court decision allowing states to impose such a draconian policy could hurt Republicans, and Donald Trump specifically, in November. The three less-extreme conservative justices may have therefore figured out a way to punt the case. Yet they also gave us good reason to believe that when it comes back around next year, they will side with the red states that wish to enforce their abortion bans against patients in extreme medical distress.

Moyle revolves around the Emergency Medical Treatment and Labor Act, known as EMTALA, which Congress enacted in 1986. The law requires hospitals that accept federal funding to provide stabilizing care for any “emergency medical condition” that poses “serious jeopardy” to a person’s health. Abortion is the standard of care for many pregnancy-related conditions, and hospitals have long provided the procedure when necessary to stabilize a patient. At least half a dozen states, however, have enacted abortion bans so stringent that they conflict with EMTALA’s commands. Idaho, for instance, criminalizes abortion except when it is necessary to prevent a patient’s death. (Doctors who perform an abortion before the patient is close enough to death face a mandatory minimum of two years’ imprisonment.)

Joe Biden’s Department of Justice sued Idaho, alleging that EMTALA preempts state law. A district court agreed, issuing an injunction that required Idaho to allow abortions when a patient’s health (but not necessarily her life) was in serious jeopardy. The Supreme Court halted that injunction and took up the case before the appeals court could issue a decision on the merits. As soon as SCOTUS intervened, Idaho doctors had to start airlifting pregnant patients to neighboring states to obtain emergency abortions that were illegal under Idaho law.

If the draft opinion is accurate, then the Supreme Court has decided that it should not have intervened in the first place. It reached this conclusion by a 5–4 vote: Justices Elena Kagan and Sonia Sotomayor joined with Justices Amy Coney Barrett and Brett Kavanaugh, as well as Chief Justice John Roberts, to dismiss the case as “improvidently granted,” with a one-line per curiam opinion. These justices also voted to lift the stay on the injunction that had protected Idaho patients, and they were joined by Justice Ketanji Brown Jackson on that front. (Jackson would have decided the case against Idaho rather than dismissing it.) The compromise seems obvious: Kagan and Sotomayor agreed to dismiss the case in exchange for a reinstatement of the stay in Idaho.

Barrett wrote to explain her vote, joined by Roberts and Kavanaugh. Her draft concurrence should throw cold water on anyone tempted to call this move a victory for reproductive rights. The justice makes two key points. First, she claimed that Idaho has expanded access to emergency abortions beyond what it initially represented, while the DOJ has narrowed EMTALA’s scope beyond what it initially claimed. She cited concession by Idaho’s attorney during oral argument that the state would allow abortions in an emergency situation in which death is not inevitable, like preeclampsia and preterm premature rupture of the membranes. In light of this shift, Barrett wrote, it’s unclear how state and federal laws conflict, requiring further lower court proceedings. And she voted to lift the stay not because she agrees with the DOJ’s interpretation of EMTALA but because, “even with the preliminary injunction in place, Idaho’s ability to enforce its law remains almost entirely intact.”

Second, and more ominously, Barrett cited an alarming constitutional theory that Idaho brought at the eleventh hour. Congress enacted EMTALA pursuant to the spending clause, under which the federal government may offer (or withdraw) funds with certain strings attached. Idaho alleges that Congress cannot mandate funding conditions that force recipients to violate states’ criminal laws. If that’s true, then even if EMTALA requires emergency abortions when a patient’s life is at risk, it must yield to state bans that criminalize such care. In her draft concurrence, Barrett called this novel theory “difficult and consequential,” urging the lower courts to address it. Her opinion reads like an invitation for Idaho to develop this concept more fully and present it next term, when she—and Roberts and Kavanaugh—will be less prone to the pressures of an impending presidential election and thus likely more amenable to it.

As with any Barrett opinion, a casual reader may find herself nodding along, persuaded by the clear writing and smooth reasoning. But ponder this draft concurrence for more than a few minutes and it falls apart. Yes, the Department of Justice and Idaho have whittled down the scope of their disagreement—but so what? The conflict is still there, in the text of the respective laws and in their potential applications. The Idaho Supreme Court has already provided its definitive interpretation of the state ban, declaring that it permits abortion only when necessary to prevent death, not to protect a patient’s health more broadly. Yet Barrett credited the unfounded assertions of the midlevel state lawyer, Joshua Turner, who argued the case before them. Turner’s legally meaningless thought bubbles will not protect a doctor accused of violating the ban. As Jackson wrote in her partial dissent: “Some of my colleagues latch onto the bald representations of Idaho’s counsel, using them as an escape hatch that justifies our dispensing with having to issue a merits ruling in these cases.”

If Barrett were even remotely inclined to interpret EMTALA as a protection for abortion patients, she would not have performed this casuistic jujitsu. For the Supreme Court’s purposes, all that matters is the existence of a conflict, which even Barrett had to acknowledge while fudging its contours. That conflict gave the justices an opportunity to decide the foundational question: Does EMTALA override the most extreme applications of state abortion bans? SCOTUS could have said yes, then sent the case back down for the lower courts to apply it on the ground. The district court could have sussed out the precise scope of the clash between state and federal laws and delineated the point at which EMTALA supersedes Idaho’s ban. Barrett’s refusal to take this course of action suggests that she is not prepared—indeed, will never be prepared—to enforce EMTALA against the states.

So, why the punt? A generous explanation is that Barrett could not swallow the consequences of a decision for Idaho. Justice Samuel Alito’s draft dissent, joined by Justices Clarence Thomas and Neil Gorsuch, is unyielding in its cruel disregard for women’s health; he acknowledged, for instance, that Idaho’s ban may require doctors to stand by and wait for a pregnant patient to develop “infection and serious risk of sepsis” before terminating her failing pregnancy. This borderline sad*stic position may have been too much for Barrett to accept. Perhaps she would rather wait to embrace Idaho’s legalistic theory about the spending clause to obscure the human suffering this approach would unleash.

A cynic, though, might assume that Barrett, along with Kavanaugh and Roberts, wants to push this issue past the presidential election. Biden has centered his campaign on reproductive rights, highlighting women who were nearly killed by abortion bans and laying the blame at Trump’s feet. A decision freeing states to continue denying emergency abortions to patients in distress would vividly illustrate the devastating fallout from the Supreme Court’s reversal of Roe v. Wade. It would remind voters that Trump created this court, stacking it with surefire votes against abortion rights, and raise the stakes for reproductive freedom in the run-up to November. Now the court that Trump made is planning to quietly duck out of the limelight on this issue.

But it can’t stay away for long. The U.S. Court of Appeals for the 5^th Circuit has already ruled against the Biden administration’s interpretation of EMTALA, subjecting millions of women to far-reaching bans on emergency abortions. This issue will boomerang back up to SCOTUS, and it will have to make a decision. As Jackson wrote in her draft opinion, “Storm clouds loom ahead.” How far ahead? Maybe not even a year—maybe until just after November. Until then, patients in Idaho have some semblance of protection in an injunction. And tens of millions of others face the harrowing uncertainty that the Supreme Court just indefensibly prolonged.

This is part ofOpinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. AlongsideAmicus, we kicked things off this year by explainingHow Originalism Ate the Law. The best way to support our work is by joiningSlate Plus. (If you are already a member, consider adonationormerch!)