WASHINGTON, DC – When the Supreme Court erred in delaying a case, the mainstream media failed to report it and mistakenly order It dismissed the case without making any decision on the showdown between the Biden administration’s emergency room abortion mandate and Idaho’s pro-life law.
EMTALA is an acronym for the federal law that requires hospitals that receive federal funds to provide emergency room (ER) treatment for emergency medical problems regardless of a patient’s ability to pay.
The Department of Health and Human Services (HHS), led by President Joe Biden, has issued regulations under EMTALA that treat abortion as a medical emergency. Specifically, if a physician determines that “an abortion is a necessary stabilizing treatment to resolve a medical emergency in a pregnant woman,” the regulations require ERs to provide abortions, and invalidate state laws to the contrary.
Idaho has a pro-life law, the Idaho Defend Life Act. The Biden administration filed a lawsuit arguing that the new EMTALA rule supersedes Idaho law. A federal district court in Idaho issued a preliminary injunction in favor of HHS. Idaho appealed to the Ninth Circuit Court of Appeals, and the Supreme Court then took the highly unusual step of granting a “pre-judgment appeal,” short for a Supreme Court granting review (called a writ of certiorari) before the appellate court has finished deciding the appeal.
In the end, the Supreme Court decided that its earlier action was a mistake and, by a vote of 5-4, denied the leave to appeal for having been granted imprudently — what Supreme Court practitioners call DIG.
DIGs occur once or twice a year and usually consist of only a one-sentence rejection, in this case accompanied by multiple opinions.
One was written by Judge Ketanji Brown Jackson, who wrote that the court should not dismiss the case and instead strike down Idaho’s pro-life law on the basis of Biden’s abortion order.
The other, written by Justice Elena Kagan and joined by Justice Sonia Sotomayor, made clear that they plan to rule that the Biden HHS EMTALA regulations preempt Idaho law, but agreed that the court should dismiss the appeal for now.
The other, written by Justice Samuel Alito and joined in part by Justices Clarence Thomas and Neil Gorsuch, will put the case on hold pending a ruling and likely rule in favor of Idaho’s law.
“This change of policy is puzzling,” Justice Alito wrote. “Nothing legally relevant has occurred since January 5, when the court heard the case.” [whenthecourttookthecase”
“It appears that the Supreme Court has simply lost the will to decide the simple but emotive and highly politicized issues that this case raises,” he continued. “And that’s a shame.”
But the decision bloc on the court, which is increasingly becoming a 3-3-3 configuration, was written by Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.
Judge Amy Coney Barrett, President Donald Trump’s nominee to the U.S. Supreme Court, meets with Sen. Mitt Romney (R-Utah) on Capitol Hill in Washington, Wednesday, Sept. 30, 2020. (Erin Scott/Pool via The Associated Press)
“The landscape of these cases has changed significantly since we granted leave to appeal and so I agree with the court’s decision to dismiss the warrants as having been granted improperly,” Barrett said.
This is not a substantive decision; the appeal will continue in the 9th Circuit Court of Appeals, after which the losing party (which many observers expect Idaho to lose) can ask the Supreme Court to review the case again. The order appears to be final and is expected to be released in the next few days, although it appears to have been released a day or two early due to a clerical error.
But the mainstream media has given the issue major coverage, claiming a victory for pro-lifers, and many right-wing media commentators have not pushed back, perhaps in part because of the uncertainty of the Supreme Court’s proceedings and perhaps in part because Biden’s abortion mandate prevails for now.
Breitbart News senior legal contributor Ken Kurkowski is a former White House and Justice Department lawyer. Follow us on X (formerly Twitter) Kenkrukowski.
