On the Court’s 5-4 decision to dismiss the certiorari petitions in Moyle v. United States as “improvidently granted” and its 6-3 vote to vacate its stay of the district court’s preliminary injunction, the real action is between Justice Barrett’s concurring opinion (joined by the Chief Justice and Justice Kavanaugh) and Justice Alito’s dissent (joined by Justices Thomas and Gorsuch).
Some procedural background is relevant. After the district court granted a preliminary injunction in favor of the United States, a Ninth Circuit panel in September 2023 granted Idaho’s motion to stay the district court’s injunction during the appeal process (and did so on the ground that Idaho’s life-of-the-mother exception is not preempted by EMTALA). In November, the en banc Ninth Circuit then overrode the panel’s decision and denied the stay motion. At the same time, it expedited the merits appeal of the preliminary injunction and set oral argument for late January 2024.
But on January 5, 2024, the Supreme Court not only granted Idaho’s motion to stay the district court’s injunction. It also chose to treat the stay motion as a petition for certiorari before judgment (that is, before the Ninth Circuit had ruled on the appeal), granted the certiorari petition, and ordered the case to be set for argument in April. The agreement of at least five justices was needed to stay the injunction, and the stay together with the unusual grant of certiorari before judgment strongly suggested that a firm majority was ready to rule in favor of Idaho.
In her concurrence, Justice Barrett justifies the dismissal of the certiorari petitions in the two consolidated cases on the ground that “the shape of these cases has substantially shifted since we granted certiorari.” Specifically:
The parties dispute whether EMTALA requires hospitals to provide abortions-or any other treatment forbidden by state law-as necessary stabilizing care. They also disagree about whether EMTALA, as a statute enacted under Congress’s spending power and that operates on private parties, can preempt state law (an issue aired for the first time in this Court). In my judgment, it would be imprudent to answer these important questions now. Since this suit began in the District Court, Idaho law has significantly changed—twice. And since we granted certiorari, the parties’ litigating positions have rendered the scope of the dispute unclear, at best….
At the merits stage, … the United States disclaimed [what Idaho understood to be the federal government’s] interpretations of EMTALA. First, it emphatically disavowed the notion that an abortion is ever required as stabilizing treatment for mental health conditions…. Second, the United States clarified that federal conscience protections, for both hospitals and individual physicians, apply in the EMTALA context.
Narrowing happened from the other direction too. The United States identified PPROM, placental abruption, pre-eclampsia, and eclampsia as conditions for which EMTALA requires an emergency abortion to be available…. But in this Court, [Idaho officials] represent that the Act permits physicians to treat each of these conditions with emergency abortions, even if the threat to the woman’s life is not imminent….
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….
On top of that, 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.
Barrett justifies vacating the Court’s stay of the district court’s injunction on the ground that the “parties’ representations” indicate that the injunction “will not stop Idaho from enforcing its law in the vast majority of circumstances.” And that means, she contends, that Idaho will not suffer irreparable harm from the injunction.
Alito finds the Court’s “about-face” on deciding the case to be “baffling,” as “[n]othing legally relevant has occurred” since the Court granted certiorari. He observes: “Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents.”
In Part III of his dissent (a part that only Thomas joins), Alito especially objects to the Court’s decision to vacate the preliminary injunction. He calls Barrett’s justification “patently unsound”:
“‘[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’” Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers). And in this case, Idaho’s injury is not abstract. As I will explain, it is very likely that the preliminary injunction will lead to more abortions, including in at least some cases where the fetus is viable. The State of Idaho wants to prevent that; the preliminary injunction stands in its way. Isn’t that enough to constitute irreparable harm?
Further, “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.”
Alito also finds “hard to understand” the federal government’s disavowal of the notion that its interpretation of EMTALA would ever require an abortion as stabilizing treatment for mental-health conditions. As he points out, the Solicitor General’s assertion that abortion “is not the standard of practice to treat any mental health emergency” 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.”