Supreme Court Publishing Snafu Leads to Early Publication of Draft in Idaho Abortion Case Ending the Stay and Dismissing Case as Improvidently Granted; Some Thoughts on Justice Barrett’s Draft Concurrence

Unlike the Dobbs leak, this seems inadvertent. Bloomberg scoop:

The US Supreme Court is poised to allow abortions in medical emergencies in Idaho, according to a copy of the opinion that was briefly posted on the court’s website.

The decision would reinstate a lower court order that had ensured hospitals in the state could perform emergency abortions to protect the health of the mother. The briefly posted version indicated the majority will dismiss appeals by Idaho and Republican leaders in the state without resolving the core issues in the case.

Read the Full Text of Supreme Court Document on Idaho Abortion

Bloomberg Law obtained a copy of the opinion that appeared briefly on the court’s website as the justices were issuing two other opinions Wednesday morning. The copy of the opinion isn’t necessarily the final ruling, given that it hasn’t been released….

Assuming that this opinion is near to the final form, it is clear that there are three camps on the Court. The three liberal Justices believe that the Idaho law that would prevent abortions even in cases of serious health risks to the mother violates federal law. The three dissenters, Alito, joined in part by Thomas and Gorsuch, believe that Idaho’s law limiting abortions in these emergency settings is not preempted by federal law.

It’s the three Justices in the middle who are the most interesting. Barrett, joined by Kavanaugh and the Chief Justice say that how the case developed, and particularly how the U.S. government presents how to understand the relationship between federal law and Idaho law, means there’s less of a conflict and no need for the Court to step in right now. Essentially, the U.S. reads the law as requiring emergency rooms to offer abortions to women with health risks under a limited set of circumstances, and never for mental health reasons, and so the stakes are different and the case can proceed under the usual rules.

Justice Alito’s dissent, in a part of the draft not joined by Gorsuch or Thomas, really attacks the Barrett opinion and the justices in the middle. He says it is baffling that these three would see the U.S. concessions as somehow getting rid of the disagreement on the merits:

I think there are two potential explanations for what Justice Barrett is doing here. The first is legal. Without saying it, I think Barrett, Kavanaugh, and the Chief believe it is likely that, as narrowed, the U.S.’s interpretation of the law is correct and Idaho under limited circumstances must permit emergency room abortions.

The other explanation is nakedly political: it’s an election year. This case would thrust the Supreme Court’s abortion rulings into the spotlight. This puts the merits off for a year or two, when the Supreme Court could revisit, and side ultimately with Idaho and ban these abortions.

Hard to say what’s going on here, and who knows if these opinions will change….