Ordinarily, Supreme Court decisions are released at specific, pre-announced times. For instance, the Supreme Court had previously announced that it would be releasing an unknown number of opinions at 10 a.m. on Thursday and Friday.
But around noon today someone posted something today that looks like a decision in a case involving abortion, at a time when a decision wasn't due:
What is it about abortion decisions and Supreme Court internal controls? https://t.co/zgnMpuBT3i Two years ago, the Dobbs decision was leaked...
— Jonathan Turley (@JonathanTurley) June 26, 2024
From the article:
The Supreme Court would allow emergency abortion care in Idaho despite the state’s restrictions on the procedure, according to Bloomberg Law, which viewed a copy of a not-yet-released opinion that was briefly posted on the court’s website Wednesday. …
In other words, someone posted a document that they weren't supposed to. Does that mean that this is absolutely, definitely a decision that will be released? Well, the article correctly states that they don’t know for sure:
It is extremely rare — perhaps unprecedented — for a Supreme Court ruling to be posted on the court’s website before the ruling is issued, and it is possible that the document that was posted could differ from the opinion when it is announced.
As for what the case is about, the Washington Post writes the following:
The case centers on the nearly four-decade-old Emergency Medical Treatment and Labor Act, known as EMTALA, which requires hospitals that receive federal funds to stabilize or transfer patients needing emergency care.
The Biden administration sued Idaho in 2022, saying the state’s strict abortion ban conflicts with the law. The administration said EMTALA requires emergency treatment for pregnant women not guaranteed by Idaho’s statute — including abortion, if needed to address threatening health conditions short of death such as organ failure or loss of fertility.
Recommended
I wish Bloomberg would release the full PDF it obtained so readers (and other journalists) can see the full text of all the opinions on EMTALA. I find it puzzling that it has instead chosen to summarize choice snippets from the opinions and leave us guessing about so much else.
— Mark Joseph Stern (@mjs_DC) June 26, 2024
But Stern is wrong, although he might not have been wrong at the time he wrote that post. Now you can see the decision, via a link in this article:
Supreme Court acknowledges accidentally posting Idaho abortion case document that may preview Biden administration win https://t.co/CuvJQa7H96
— Meet the Press (@MeetThePress) June 26, 2024
So, the main decision is ‘per curiam’ which just means it is an unsigned opinion and the entirety of it says this:
The writs of certiorari before judgment are dismissed as improvidently granted, and the stays entered by the Court on January 5, 2024, are vacated.
That’s literally all of it. So, it’s another punt, somewhat like the opinion earlier today on the First Amendment. The difference is that this case could easily come back to the Supreme Court, while the First Amendment case is dead, unless someone moves to amend the actual complaint.
Justices Alito, Thomas and Gorsuch wanted them to keep the case and say that the federal government can’t require hospitals to carry out abortions in contradiction of state law. Jackson said they should have kept the case and decided to uphold the federal mandate.
Obviously, this can change before the final version is released, but the safe money is that the main opinion/order is not going to be altered, all one sentence of it. We are less certain of the rest of the concurring and dissenting opinions remaining unchanged.
...According to the report, the court will declare the case the court’s ruling would dismiss the case as “improvidently granted," the ultimate off ramp in difficult cases. Notably, they just rejected Murthy v. Missouri, the free speech Internet case, on standing problems...
— Jonathan Turley (@JonathanTurley) June 26, 2024
So, it goes back down to the district court again, and women in Idaho can get an abortion in medical emergencies that don’t quite add up to a danger to her life. As we understand it, this is not abortion on demand.
Oh, and for bonus points, Justice Kagan refers to 'pregnant women' while Justice Jackson refers to them as 'pregnant patients.' So we guess Jackson still isn't sure what a woman is.
Yeah right. Supreme Court mistakenly posts draft opinion in key Idaho abortion casehttps://t.co/hvA7TCVUhV
— Carl (@cgbrooks55) June 26, 2024
In the last few decades, how many decisions have been leaked out of the Supreme Court? I can only think of two.
— Maggie 🇺🇸⚾️ (@LACentrist) June 26, 2024
Dobbs and now Idaho.
The country’s highest court is compromised.
Maybe more than that. As we said earlier today:
OK here’s the creepy thought I have looking at this overnight purge on Twitter
— (((Aaron Walker))) (@AaronWorthing) June 26, 2024
The other day @Artist_Angie covered how the Biden administration acted as if it seemed to know what the Supreme Court would rule before it ruled, suggesting a current leak problem:… https://t.co/HcpjRYHAfY pic.twitter.com/u7nq525PpV
The cut off text reads:
The other day @Artist_Angie covered how the Biden administration acted as if it seemed to know what the Supreme Court would rule before it ruled, suggesting a current leak problem: https://twitchy.com/artistangie/2024/06/21/sean-davis-supreme-court-leak-n2397534
Now, just hours before the Supreme Court ruled to allow the Biden administration to suppress freedom of expression on social media platforms … https://twitchy.com/aaronwalker/2024/06/26/the-supreme-court-rules-on-social-media-censorship-imposed-by-the-biden-administration-n2397681
… we see a purge on a social media platform.
I’m not saying that this purge is proof that someone knew about today’s decision ahead of time, but… I’m with Garak on this:
Obviously, that reference to Garak is a reference to the meme we attached, which quoted the Star Trek: Deep Space Nine character as saying: 'I believe in coincidences. Coincidences happen every day. But I don't trust coincidences.'
On the other hand, inadvertency might be the best explanation if only because chances are, the Supreme Court will know exactly who did this by their login information. A person trying to intentionally leak information is less likely to do it if they are certain to be caught.
Also, our post was responding to a discussion of how a large number of accounts have been purged overnight. In private discussions, our team has noticed as many as thousands of our followers being suddenly suspended. We don't know how many suspensions are deserved, but Max is listing people he believed were wrongly suspended.
Safe for whom? It is a death sentence for the innocent baby.
— Carmelite OCDS, D.M.P.W.,PhD. (@DrIrmaOCDS) June 26, 2024
Supreme Court briefly issues opinion allowing Idaho abortions https://t.co/CRy7gAssRj
DEI hire strikes the Supreme Court. Oops!
— Earthman (@Earthman1956) June 26, 2024
Supreme Court mistakenly posts draft opinion in key Idaho abortion case https://t.co/v2RtRqQvqM #FoxNews
We think it is distasteful to assume every time there is a mistake (or even intentional misconduct) that DIE (Diversity Inclusion and Equity) types are involved. DIE programs tend to push for radical affirmative action and considerations other than merit invariably lead to more mistakes but even the most competent person can screw up.
#SupremeCourt mistakenly posts draft opinion in key #Idaho #abortion case.
— Shaughn_A (@Shaughn_A2) June 26, 2024
Wouldn’t that essentially gut what they’ve already ruled upon which gives the rights back to states? 🤔https://t.co/xXMYHQY7Ip
Not really. Indeed, if the statute is tied to federal funding, then it suggests a simple solution: Stop accepting federal funding.
Finally, we want to address this claim separately:
Alito, Thomas, and Gorsuch…men who don’t care when women die.
— Felix (@MrsPsp) June 26, 2024
Supreme Court appears poised to allow emergency abortions in Idaho for now, Bloomberg report says (from @AP) https://t.co/1S6a4yqy4q
There is literally an exception to protect the life of the mother in Idaho law and the question is about federal power, not whether or not Idaho's law is constitutional or a good idea.
Still, we will also say this. If the question of the constitutionality of Idaho’s law comes into question, we think it is likely to fall. We tend to believe that when all the dust has settled, the courts will not uphold Idaho’s law, whatever you think of it. It is common to say that in Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022), the Supreme Court said that abortion was left up to the states. But that is an oversimplification. Here’s what the Supreme Court actually said:
A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity.’ … It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. … These legitimate interests include respect for and preservation of prenatal life at all stages of development … ; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
(Citations omitted.) Lawyers will tell you that this constitutional test—the rational basis test—is just about the weakest test in constitutional law, so as a practical matter the states can do almost anything as long as it doesn’t violate some other constitutional provision.
But this test isn’t completely toothless and this author thinks that the courts—including the Supreme Court, if it comes to it—will say that a law that doesn’t allow abortion to protect a woman from either death or a very serious injury (beyond what is normally risked in pregnancy) fails the rational basis test. This author predicts that the states are probably going to be required to have an exception that goes beyond merely protecting the life of the mother.
Join the conversation as a VIP Member