Inside the mystery of why the Supreme Court refused to hear an urgent abortion case

Last week, the Supreme Court stunned court watchdogs by refusing to take up an emergency abortion case outside Texas, upholding the state’s near-absolute ban.

The case, nearly identical to the Idaho one the Court heard last term, centers on whether even states with abortion bans must allow emergency room doctors to perform emergency abortions . The federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals to take federal funds to stabilize all patients in crisis, and the Biden administration has clarified that this mandate includes abortions, when that is the care necessary

The Court published its Texas order in the shadow register, with no explanation or noted dissents.

“When I saw the news, I was very surprised, and I was surprised that liberals didn’t say anything,” David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law, told TPM.

The move was strange for two reasons; First, the Court considered much the same question — whether state abortion is barred by federal emergency room standards — last quarter with the Idaho case, which ultimately sent it back to the appeals court. ·lations and decided that he had intervened too soon. The case is almost certain to go back to court at some point (if the justices decide to take it up), but the justices still threw it out.

Second, in the Texas case, U.S. Solicitor General Elizabeth Prelogar had asked the justices to grant certiorari, vacate the Texas Fifth Circuit’s opinion, and send the case back to the lower court for further consideration He cited factors such as Idaho court proceedings and Texas’ assertion that there is no daylight between its abortion ban and the care it must provide in emergency rooms as reasons for which the case is ripe for further litigation.

The Court did nothing of the sort. It rejected the government’s request, upholding the 5th Circuit’s decision. Meanwhile, the nearly identical Idaho case the Court heard last term is back in the 9th Circuit.

For experts, the outright dismissal of the Texas case raised additional questions and possible insight into how the critical issue may ultimately be decided.

“My guess is that most judges (as opposed to many doctors and patients) feel that this is not an emergency that they have to deal with immediately, and they’re fine with Texas continuing to enforce its law in the meantime? And it’s likely that This problem will go away entirely if Trump wins the election, so why does everyone care if the EMTALA interpretation is repealed anyway, Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, pondered TPM.” And ultimately, I suspect that’s somewhat indicative of where the majority stands: They’re not going to govern for the Biden administration anyway, so it won’t change the bottom line if they take the case now and decide the issue. later.”

That reading would match the tenor of oral arguments in the Idaho case, where the right-wing justices tried hard to paint a world in which the state’s abortion ban, one of the strictest in the country, it contained exceptions that would be graciously extended to cover a litany of horrific cases that liberals and Prelogar describe for listeners. They appeared so strong against the Biden administration that some court watchers interpreted their decision to send the case back to the 9th Circuit as an attempt to keep a big 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, fully developed in the lower court.” (The district court had not yet reached the merits of the case, with the litigation thus far centered on whether the Texas ban should be stayed while the case plays out).

If Trump is elected, both experts noted, the cases are likely to disappear. Idaho definitely would, as it was initially introduced by Biden’s Department of Justice. And Texas officials could drop their lawsuit, knowing that a Trump administration would never go after them under EMTALA for refusing to provide abortions.

The other curiosity in the rejection of the judges in the case of Texas is the silence of the liberals. Although we do not know how they voted on the case, there were no observed dissents. Justices can and often do write when they disagree with the majority’s decision to take up or dismiss a case.

“This could indicate that the liberals know this case isn’t going to go their way, so it’s better to hold off on granting certs and at least leave the Idaho law blocked for as long as it takes for this case to turn around, in instead of having it decided this term and then losing the Idaho requirement as well,” Hill theorized.

It doesn’t explain why, he noted, they didn’t write in defense of the Attorney General’s plan.

The Supreme Court has never been a transparent institution, its justices shielded from questions from reporters and increasingly making decisions through the shadow docket with no oral arguments or often any writing to indicate their thinking.

For women at risk of permanent injury or death from pregnancy complications, their right to an emergency abortion (already non-existent in Texas) exists tenuously in this silence, based on the whims of the Court , the speed of the appellate courts, which wins elections.

“Ultimately, I would read this at least in part as an indication of where the conservative justice bloc stands on the merits,” Hill concluded.