Given the breathtaking sweep of the Supreme Court’s decisions in the final days of its term, it’s easy to overlook a decision that had no sweep at all because it was a decision not to decide.
I’m referring to the court’s dismissal of the case about whether Idaho can violate federal law by barring hospitals from performing emergency abortions for women whose pregnancies present a severe threat not necessarily to their life but to their health, including their future fertility.
Last Thursday, nine weeks after hearing argument, the court dismissed the case as “improvidently granted,” meaning that the court, upon reflection, should not have accepted the case for review. The litigation in the lower federal courts involved a dispute over Idaho’s defiance of that federal law. The case now returns to the lower courts, where it stood before the Supreme Court intervened on the state’s behalf.
This unexpected turn obviously pales in significance beside the court’s aggressive dismantling of the administrative state and its generous grant of substantial immunity to Donald Trump. Dismissal of a case, which happens maybe once or twice a term, has no formal meaning as a precedent and usually not much meaning at all. But it seems to me that the fate of this particular case, Moyle v. United States, has much to tell us about the Supreme Court at a supremely fraught moment. Its brief life on the court’s docket opens a window on the court’s internal tensions more revealing than the carefully polished opinions through which the justices usually speak.
In every way that counts, Moyle represents an astonishing institutional failure. Everything about the court’s acceptance of the case was irregular from the start. The justices plucked Idaho’s appeal off the court’s “shadow docket” of cases that don’t arrive as ordinary petitions for review but rather as urgent requests for some form of emergency relief. Idaho sought a stay from an injunction issued by a federal district judge barring the state from applying its recently enacted abortion ban to women with urgent health reasons for terminating a pregnancy.
Idaho’s Defense of Life Act permits abortion only to save a woman’s life or in cases of rape or incest, while a federal law, the Emergency Medical Treatment and Labor Act, requires hospitals to provide medically indicated emergency care for any condition, either by treating the patient in the emergency room or by arranging a transfer to another hospital. In those circumstances, the Federal District Court held, the 38-year-old federal law pre-empted Idaho’s abortion ban.
The U.S. Court of Appeals for the Ninth Circuit refused to lift the district court’s injunction but agreed to hear the state’s appeal. Then, just weeks before the scheduled hearing, the Supreme Court swooped in, lifted the injunction itself and, bypassing the appeals court, agreed to hear Idaho’s case, a procedure known as “certiorari before judgment.”
Rule 11 of the Supreme Court’s rules provides that certiorari before judgment “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court.” What was the imperative public importance? Idaho told the Supreme Court that the district court had turned the medical treatment law “into a federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life.” The injunction “turns emergency rooms into a federal enclave where state standards of care do not apply,” the state said in its emergency application. The Biden administration, which had sued the state for violating the federal law, had seriously misconstrued the law, the state asserted.
This was a sophisticated document, written with the assistance of lawyers for Alliance Defending Freedom, the Christian litigating group that has enjoyed notable success at the Supreme Court and knows just what buttons to push to catch the eye of those justices attentive to the language and goals of the conservative social movement. Five votes rather than the usual four are needed to grant certiorari before judgment. It’s highly likely that it was Justice Samuel Alito, author of the Dobbs v. Jackson Women’s Health Organization decision that 18 months earlier had eliminated the constitutional right to abortion, found enough colleagues who read the state’s message as he did: that the case was an attempted end run around Dobbs by the Biden administration aided by a liberal judge (Judge B. Lynn Winmill, who issued the injunction, was nominated by President Bill Clinton).
And so, recklessly and prematurely, the court asserted jurisdiction over a case that was still at the beginning of an appellate process that would have provided much-needed clarity about how Idaho’s law operated and what the federal government was requiring. It was the absence of such clarity that ultimately proved the case’s undoing.
I can’t prove that Justice Alito played the leading role in the decision to accept the case, but the evidence for my theory is right there on the face of his opinion dissenting from the dismissal. Joined by Justice Clarence Thomas and in part by Justice Neil Gorsuch, he wrote, “Shortly before Idaho’s law took effect, President Biden instructed members of his administration to find ways to limit Dobbs’s reach.” That is a jarring and highly politicized observation to find in a judicial opinion. His 25-page dissent gives every evidence of having been drafted as a majority opinion, an opinion that failed.
How could that happen, given that he must have had at least four others on board when the court took the case? Part of the answer is that he overreached. The opinion reads as an untamed excursion through Justice Alito’s id, with passages that are close to unhinged. Objecting both to the court’s dismissal of the case and its decision to restore the injunction blocking Idaho’s law, Justice Alito wrote that latter action was “very likely” to “lead to more abortions, including in at least some cases where the fetus is viable.” In an opinion with 25 footnotes, he offered no citation or evidence for such an inflammatory statement.
The federal law contains several references to protection for the “unborn child.” Read in context, these clearly refer not to abortion but to a hospital’s duty to treat a woman in active labor if either she or her unborn child is in “jeopardy.” Justice Alito’s interpretation of the statute as actually barring abortion defies context to the point of gaslighting. “It goes without saying that aborting an ‘unborn child’ does not protect it from jeopardy,” he wrote. In an article published in Slate on Tuesday, the legal scholars Reva B. Siegel and Mary Ziegler noted that “in Alito’s reading, the statute demonstrates a kind of fetal personhood that renders invisible the personhood of the pregnant patient.”
Among the justices who disagreed with him were, significantly, the fellow conservatives Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. Justice Barrett wrote for all three in providing an explanation for the dismissal. In contrast to an opinion by Justice Elena Kagan, who wrote that the court’s intervention in Idaho’s case was “never justified,” Justice Barrett’s tone was apologetic and a bit abashed, befitting one who most likely had voted to hear the case. The decision to take the case was a “miscalculation” that “has proved to be unwise,” she wrote, explaining that the case looked different now from how it looked back in January, before the parties filed their briefs and appeared before the court for oral argument. Perhaps the court should have looked more closely before taking the case away from the Ninth Circuit.
Justice Barrett’s doubt about proceeding was not a surprise. When the case was argued in April, she questioned the state’s lawyer, Joshua Turner, intensely, at one point telling him that she was “kind of shocked” by his equivocation about under which dire circumstances an Idaho doctor could perform an abortion without facing prosecution. It was as if the implications of the position she had signed up for had just hit her, hard: of women whose pregnancies threatened them with lasting damage being airlifted out of Idaho in order to get the abortions they desperately needed. It would be nice to think that Justice Alito cares as much for women as he does for fetuses. Justice Barrett was his silent partner in Dobbs. Now we’re beginning to hear her voice.
When the court dismissed the Idaho case, some on the left scoffed that the conservative justices may have just wanted to avoid another unpopular abortion decision in an election year. Justice Alito himself seemed to say as much in his dissent, complaining: “Apparently, the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents.” I don’t buy it. The visible mishandling of this case was too embarrassing a price to pay for shielding Republican officeholders from abortion backlash.
After a week when the court’s conservatives marched in lock step through the major cases on their agenda, it may be folly to posit disarray in their ranks, although the unease is palpable. And with more abortion cases on their way to the court, this case may over time be relegated to a footnote, an odd digression.
But it matters now. It matters that Samuel Alito’s abortion obsession may have led him to bend the usual rules and to persuade others to follow. It matters that some of those others jumped off the train. If they learned something along the way, that may offer a shred of hope at the end of this dispiriting Supreme Court term.