Last week, the Supreme Court surprised court-watchers by declining to take up an emergency abortion case out of Texas, leaving the state’s near-absolute ban in place.
The case, almost identical to one in Idaho the Court heard last term, centers on whether even states with abortion bans must allow emergency room physicians to provide abortions in critical cases. The federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals taking federal funds to stabilize all patients in crisis — and the Biden administration has clarified that that mandate includes abortions, when that’s the needed care.
The Court released its Texas order on the shadow docket, with no explanation or noted dissents.
“When I saw the news, I was very surprised — and surprised that the liberals didn’t say anything,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, told TPM.
The move was odd for two reasons; first, the Court considered virtually the same issue — whether state abortion bans preempt federal emergency room standards — last term, with the Idaho case, ultimately punting it back down to the appeals court and deciding that it had intervened too early. The case is almost certainly going to bubble back up to the Court at some point (if the justices choose to take it up), but the justices still kicked it down the road.
Second, in the Texas case, U.S. Solicitor General Elizabeth Prelogar had asked the justices to grant certiorari, vacate the 5th Circuit’s opinion siding with Texas and send the case back down to the lower court for further consideration. She cited factors including the Court’s Idaho proceedings and Texas’ assertion that there is no daylight between its abortion ban and the care it is required to provide in emergency rooms as reasons why the case is ripe for further litigation.
The Court did none of that. It rejected the government’s petition, letting the 5th Circuit’s decision stand. Meanwhile, the near-identical case out of Idaho that the Court heard last term is back at the 9th Circuit.
For experts, the flat rejection of the Texas case raised both additional questions and possible insight into how the critical question may ultimately be decided.
“I guess a majority of the Justices (unlike many doctors and patients) just feel like this isn’t a hair-on-fire emergency that they need to deal with right away, and they are fine to let Texas continue enforcing its law in the meantime? And it’s likely that this issue goes away completely if Trump wins the election, so why get everyone all worked up if the EMTALA interpretation gets repealed anyway?” Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, mused to TPM. “And finally, I suspect this is a bit of a tell about where the majority stands — they are not going to rule for the Biden Administration anyway, so it’s not going to change the ultimate outcome if they take the case now vs decide the issue later.”
That read would match the tenor of oral arguments in the Idaho case, where the right-wing justices insistently tried to paint a world in which the state’s abortion ban — one of the strictest in the country — contained exceptions that would amenably stretch to cover a litany of gruesome cases the liberals and Prelogar described for listeners. They sounded so strongly arrayed against the Biden administration that some court-watchers interpreted their decision to kick the case back down to the 9th Circuit as an attempt to keep a major anti-abortion headline out of the news before the election.
“One possibility is that they want to avoid another abortion case, especially right before the election,” Cohen said, adding: “Another possibility is that they want to let this case — especially after the Idaho one — play out fully in the lower court.” (The district court had not yet gotten to the merits of the case, with litigation so far focused on whether Texas’ ban should be suspended while the case plays out.)
If Trump is elected, both experts noted, the cases likely disappear. Idaho’s definitely would, as it was initially brought by the Biden Justice Department. And Texas officials might drop their lawsuit, knowing that a Trump administration would never come after them under EMTALA for declining to provide abortions.
The other oddity in the justices’ rejection of the Texas case is the silence from the liberals. While we don’t know how they voted on the case, there were no noted dissents. Justices can and often do write when they disagree with the majority’s decision to take up or reject a case.
“That could indicate that the liberals know this case is not going to go their way, so it’s better to hold off on granting cert and at least leaving the Idaho law blocked for however long it takes for that case to make it back, rather than having it decided this term and then losing the Idaho injunction too,” Hill theorized.
It doesn’t explain why, she noted, they didn’t write in defense of the Solicitor General’s plan.
The Supreme Court has never been a transparent institution, its justices shielded from reporters’ questions and increasingly making decisions via the shadow docket without oral arguments or often any writing at all to indicate their thinking.
For women risking permanent injury or death from pregnancy complications, their right to get an emergency abortion (already nonexistent in Texas), exists tenuously in this silence, predicated on the Court’s whims, the speed of the appellate courts, who wins the election.
“Ultimately, I would read it at least partly as an indication of where the conservative bloc of Justices stand on the merits,” Hill concluded.
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