The Court was right to be skeptical of the parties trying to shift their litigating positions on the fly but could have given clarity to federal law.
The Court was right to be skeptical of the parties trying to shift their litigating positions on the fly but could have given clarity to federal law.
J ustice Amy Coney Barrett is getting a lot of grief in some quarters of the Right this week for backing the Supreme Court away from the merits of some of the term’s biggest cases. Today’s decision to drop Moyle v. United States, the Idaho abortion case, from the Court’s docket adds to those complaints. In Moyle, the dissenting justices were right that the Court should have kept and decided the case. There’s a strong argument as well that the Court ought to have proceeded to the merits in yesterday’s disposal of Murthy v. Missouri on standing grounds and a case to be made that the Court was wrong when it unanimously threw out the challenge to the FDA’s relaxation of rules on the abortion pill.
But all three cases did present vexing challenges to reaching the merits, and conservatives should take seriously the proper limits of the judicial role. Principled disagreements among the conservative justices on judicial-process questions — standing, mootness, ripeness, emergency relief, remedies, severability, the weight of precedent — are nothing new. Justice Barrett, an academic by background specializing in theories of jurisprudence, has her own strong and considered views on the proper guardrails for when and how the Court should decide cases. Those views are emerging more strongly now that she has settled onto the Court for three full terms.
Maybe we will feel differently after seeing the last six cases of this term, but I’ve seen no sign that Barrett (unlike Chief Justice John Roberts) suffers from a lack of moral courage. Her votes were key to the majorities in hot-button cases such as Dobbs, Bruen, and Students for Fair Admissions v. Harvard. If some fans of Bruen were disappointed in the Court’s approach to the Second Amendment in United States v. Rahimi, Barrett had a lot of company, because the decision was 8–1, and it tracked the “dangerousness” principle that won plaudits for Barrett from gun-rights groups when she was on the Seventh Circuit. That’s a defensible originalist approach, even if one prefers Justice Clarence Thomas’s view that Founding-era laws prescribed a different remedy than disarmament for a civil finding of dangerousness prior to any criminal conviction.
A Clash of Moving Targets
As I detailed when the case was initially filed in 2022 and after the oral argument in April, Moyle came to the Court as a collision between Idaho’s abortion ban and the federal Emergency Medical Treatment and Labor Act (EMTALA). In order to resolve the case, the Court had to first know what the Idaho law meant (which is a question for the state courts) and then construe the meaning of EMTALA. Merrick Garland didn’t help matters by rushing to file the case before the Idaho law even went into effect, while there were still pending challenges to it under state law in the Idaho courts, and without even giving the Idaho attorney general as much as three business days to respond to a letter demanding a state opinion on what the law covered.
Idaho’s law, as it stood at the time the suit was filed, provided an exception for abortions when “necessary to prevent the death of the pregnant woman.” As Barrett noted in her concurring opinion in Moyle — joined by Roberts and Justice Brett Kavanaugh — Garland’s haste made a hash of the case from the very beginning. A federal district court enjoined the state law based on a set of assumptions about it that the Idaho Supreme Court then rejected — and then the district judge (B. Lynn Winmill, a Bill Clinton appointee) refused to reconsider the decision even after being told by the state supreme court that he had the state law wrong. The Idaho legislature then clarified that the law did not cover ectopic pregnancies, and it made the life-of-the-mother carve-out an element of the law rather than an affirmative defense for the doctor.
The Ninth Circuit did its own dance with the case, with a panel staying the district court injunction and then the whole en banc circuit court undoing that stay. The case came to the Court on an emergency application, and the Court decided to step in and hear the dispute without waiting to see what the Ninth Circuit would come up with next.
Some of the justices, and Barrett in particular, appear to be stung by criticism that the Court has too often ruled on cases through its “shadow docket” — that is, issuing orders on emergency applications without full briefing and argument. That sensitivity, and also the Court’s distaste for ruling on cases that might be moot, was on display from the very first case this term, when the Court (in an opinion by Barrett) dismissed from the docket Acheson Hotels, LLC v. Laufer after the plaintiff in the case dropped it and pledged to stop filing abusive Americans with Disabilities Act lawsuits. At the time, Thomas dissented alone, arguing that the issue in the case — whether the plaintiff had standing to sue — had been fully briefed and argued already and may as well be resolved in order to end an ongoing circuit split.
The Biden administration’s legal theory is that EMTALA preempts contrary state laws because EMTALA sets a substantive, national standard of emergency-room medical care — the contours of which are set not by Congress in the statute, nor by regulations issued by a federal agency, nor by state medical boards, but by “the accepted standard of practice” nationwide. Accepted by whom? Nobody who can be voted out of office, that’s for sure. This is, as I detailed in my prior columns, not only anti-democratic, anti-federalist, and an egregious violation of the major-questions principle (given that EMTALA says nothing at all about empowering anybody to set such a standard), but it’s also at odds with the pro-life history of the statute, its broad bipartisan support in the 1980s, the fact that the statute was entirely focused on treating patients who were unable to pay for care, the lack of anybody thinking between then and 2022 that it set a substantive medical standard, the unprecedented spectacle of a statute passed as a condition to a federal spending program preempting state criminal laws, and the fact that EMTALA was passed under the Medicare program, which by definition does not cover much in the way of abortions for the elderly.
When the case got to the Court, both sides labored overtime to convince the Court that their positions were more moderate than the other side claimed. Idaho said that conditions such as preeclampsia were life-threatening to the mother and thus could justify an abortion under the Idaho Defense of Life Act. The Biden administration said that EMTALA recognized conscience protections for doctors and hospitals, and that under current standards of practice, it would never be read to require an emergency abortion for reasons of mental health of the mother.
Idaho’s concessions might be binding, because Idaho’s position interprets the text of a state statute and reflects the position of state medical and legal authorities. But the Biden administration’s concessions are obviously just to get through the case. The Court may defer to Idaho’s interpretation of state law, but the solicitor general doesn’t get to decide what federal statutes mean; that is the Court’s job. Moreover, the solicitor general never argued that the language of EMTALA fixes the meaning of the statute. The Justice Department’s legal theory is, instead, that EMTALA embodies standards that can change any time the “medical community” thinks they need to change. The solicitor general never identified whom you would ask if you wanted to determine what those standards are. Idaho’s lawyer made that point explicitly at oral argument: “You go outside the text to professional standards that are floating out there that might change day to day. . . . The American Psychiatric Association, in a 2023 position paper, says that abortions are imperative for mental-health conditions.”
Justice Samuel Alito, in a dissent joined by Thomas and Justice Neil Gorsuch, echoed that point:
The Solicitor General tried to explain why the Government’s interpretation would not lead down this path, but her explanation is hard to understand. She said that mental-health emergencies “could never lead to pregnancy termination” because abortion “is not the accepted standard of practice to treat any mental health emergency.” . . . That assertion appears to be inconsistent with the position taken by prominent medical associations that endorse abortion for mental-health reasons as an accepted standard of practice. See, e.g., American Psychiatric Association, Position Statement on Abortion and Women’s Reproductive Healthcare Rights (March 2023) (“Freedom to act to interrupt pregnancy must be considered a mental health imperative”); American Psychological Association, Resolution Affirming and Building on APA’s History of Support for Reproductive Rights (Feb. 2022).
As Alito noted — citing none other than Ramesh Ponnuru’s book Party of Death — a mental-health exception can very quickly swallow up an entire abortion law. The DOJ and the Court’s liberals are playing for time until they can manufacture the necessary professional consensus and bring it before what they hope will be a Court with different personnel.
Barrett, Roberts, and Kavanaugh concluded, however, that the Court should not be trying to hit a moving target:
A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up.
More optimistically, this case is not over; just as she warned in Acheson Hotels that the Court might look more skeptically on another mootness argument if the plaintiff showed up on its doorstep again after strategically dismissing her case, Barrett noted that some of the arguments made in Moyle that might not have been fully briefed would be better to hear if they were properly presented: “Petitioners 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. . . . The District Court did not address this issue below—nor did the Ninth Circuit, which we bypassed. We should not jump ahead of the lower courts, particularly on an issue of such importance.”
Forging Ahead
While the Court’s liberal wing was happy to join Barrett, Roberts, and Kavanaugh in dumping Moyle, however, they didn’t buy the premise that the conflict between Idaho’s view of its law and the Biden administration’s reading of EMTALA had narrowed to the point of being anything near moot.
Justice Elena Kagan — in a concurrence joined by Justices Sonia Sotomayor and Ketanji Brown Jackson — claimed that the conflict between the two statutes was still sufficiently live and severe that it required an airlift every week from Idaho emergency rooms to out-of-state hospitals in cases that, on her reading of EMTALA, would demand an abortion on the spot to comply with federal law. Kagan explicitly argued that preeclampsia and other conditions discussed by Barrett would not be considered life-threatening under Idaho law.
Justice Jackson went even further, writing separately to argue that the Court should keep the case and rule for the government. Indeed, she described it as a “months-long catastrophe” that the courts even considered letting Idaho have its own laws, let alone take the time for the legal process to figure out what those laws meant before striking them down.
Jackson was with the conservative dissenters in thinking the case was ready, the stakes clear, and the issue likely to recur:
If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months. Other States across the country have enacted legislation that gives rise to the same sort of legal conflict that Idaho has created. This pre-emption issue is not going away anytime soon and will most certainly return to this Court. Indeed, it already has. Just three days before we granted this petition, the Fifth Circuit decided a similar case, affirming a permanent injunction that prevents the United States from enforcing EMTALA’s requirements with respect to stabilizing emergency abortions prohibited by Texas law. . . . The United States has already petitioned for certiorari in that case . . .
Both Idaho and the United States still agree that Idaho law directly criminalizes emergency care that the Federal Government reads EMTALA to require.
Jackson accused Barrett, and Idaho’s lawyers, of “conveniently” changing their tune on what Idaho law meant, in statements that “are not a definitive interpretation of Idaho law,” as an “escape hatch” from deciding the case. Naturally, it never occurred to her that the very haste she demands in the federal litigation is what put the case on the Court’s doorstep before it was fully baked. Naturally, Jackson refers to “pregnant people” rather than women (hey, she warned us that she was not a biologist). Naturally, Jackson’s reading of the statute never even considers what it was understood to mean when it was enacted, how it has been construed by courts, its status as a spending clause rule in the Medicare program, or really any of the tools that courts use to interpret text.
Alito agreed with Jackson that the case was ripe for decision, but that is as far as any common ground got: Jackson accused Alito of arguing “that States have free rein to nullify federal law” — as if it never occurred to her that there might be disagreements over what federal law means. As I discussed in my write-up of the argument, there is also a whole body of law that presumes that federal statutes do not preempt state laws on public health and safety unless they do so clearly; Jackson clearly has not read any of those cases since expressing bafflement at the concept during the argument. Alito was having none of this: “JUSTICE JACKSON’s opinion adds nothing to JUSTICE KAGAN’s legal analysis, but she reads my opinion to suggest ‘that States have free rein to nullify federal law.’ Anyone who reads my opinion can see that it makes no such suggestion but simply explains what the federal law in question means.” He added that the liberals “endorse the Government’s interpretation of EMTALA but barely bother to explain why they think the interpretation is correct.”
As Alito noted, the Justice Department’s “novel” reading of EMTALA emerged only when Joe Biden directed his administration, in response to Dobbs, to find any way possible to limit the decision’s impact. Describing the government’s position as “plainly unsound,” he took another potshot back at Jackson: “No one who has any respect for statutory language can plausibly say that the Government’s interpretation is unambiguously correct.” Which is exactly what she says. Alito trained fire on six of his colleagues for standing down:
In addition to the parties’ briefs, we received 46 amicus briefs, including briefs submitted by 44 States and the District of Columbia; briefs expressing the views of 379 Members of Congress; and briefs from prominent medical organizations. Altogether, we have more than 1,300 pages of briefing to assist us, and we heard nearly two hours of argument. Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable . . .
Whatever narrowing may have occurred during briefing and argument in this Court, both the Government and the State of Idaho fervently maintain that it matters whether the Idaho law is enforced. Do any Justices in the majority seriously disagree? Do any of them think that the parties, not to mention their armies of amici, are fighting about nothing?
Three of the six Justices in the majority also agree that there is a conflict—and judging from their fiery rhetoric, a big one.
On the practical question of whether the shifting sands of the parties’ litigating positions justified the Court in avoiding the question, I think Alito and Jackson had the better of the argument: The parties and six members of the Court plainly believe that there is a live, concrete dispute that will be resolved mainly by how the Court construes EMTALA and its preemptive sweep, regardless of exactly what Idaho law covers. And the fact that the Biden administration reads EMTALA as a permanently evolving statute means that the problem of pinning down its meaning is not going away.