WASHINGTON, DC – Establishment media botched covering when the Supreme Court flubbed the punting of a case, accidentally posting early an order dismissing the case without any decision on the showdown behind the Biden administration’s ER abortion mandate and Idaho’s pro-life law.
EMTALA is the acronym for a federal law requiring hospitals who receive federal dollars to provide emergency room (ER) care for urgent medical matters without regard to whether the patient can pay.
Joe Biden’s U.S. Department of Health and Human Services (HHS) issued a regulation treating abortion as emergency medical care under EMTALA. Specifically, if a doctor decides that “abortion is the stabilizing treatment necessary to resolve” a pregnant woman’s medical emergency, the regulation forces the ER to provide the abortion, overriding any state law to the contrary.
Idaho has a pro-life law on the books, the Idaho Defense of Life Act. The Biden administration sued, arguing its new EMTALA rule supersedes Idaho law. A federal district court in Idaho issued a preliminary injunction in favor of HHS. Idaho appealed to the Ninth Circuit, after which the Supreme Court took the extraordinarily rare step of granting “cert before judgment” – shorthand for the Supreme Court granting review (called a writ of certiorari) before the appeals court finishes deciding the appeal.
Turns out the Supreme Court has now decided that early move was a mistake, voting 5-4 to dismiss the grant of certiorari as improvidently granted – what Supreme Court practitioners call a DIG.
While DIGs happen once or twice per year, they usually consist only of a single-sentence dismissal. In this instance, it’s accompanied by several opinions.
One is written by Justice Ketanji Brown Jackson, who wrote that the court should not dismiss the case, and instead should strike down Idaho’s pro-life law on the basis of Biden’s abortion mandate.
Another is written by Justice Elena Kagan, joined by Sonia Sotomayor. They made clear that they planned to rule that the Biden HHS EMTALA regulation preempts Idaho law, but agreed that the court should throw out the appeal for now.
Another is written by Justice Samuel Alito, joined in part by Clarence Thomas and Neil Gorsuch. They would keep the case for decision, and rule in favor of Idaho’s law.
“This about-face is baffling,” wrote Alito. “Nothing legally relevant has occurred since January 5 [when the court took the case.”
“Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents,” he continued. “That is regrettable.”
But the deciding block in what is increasingly a 3-3-3 court was written by Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.
Judge Amy Coney Barrett, President Donald Trumps nominee for the U.S. Supreme Court, is shown while meeting with Sen. Mitt Romney, R-Utah, on Capitol Hill in Washington, Wednesday, Sept. 30, 2020. (Erin Scott/Pool via AP)
“Because the shape of these cases has substantially shifted since we granted certiorari, I concur in the Court’s judgment dismissing the writ as improvidently granted,” Barrett said.
This is not any sort of decision on the merits. The appeal will now continue in the Ninth Circuit, after which the losing side – which many observers expect to be Idaho – can again ask the Supreme Court to review the matter. The order appears to be in final form and so should be released in the next few days, and appears to have been posted a day or two early due to a clerical error.
But the establishment media is crowing over the issue, claiming a pro-abortion victory. And many media commentators on the right are not pushing back, for some perhaps because they are unclear regarding Supreme Court procedure, but others likely because – for the moment – Biden’s abortion mandate holds sway.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.
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