Errant SCOTUS abortion case document posting sparks confusion

There was no ruling in the EMTALA case on Wednesday, but Bloomberg reported on an "inadvertently" posted doc. Also: SCOTUS conservatives make corruption easier.

On Wednesday afternoon, Bloomberg sent shockwaves throughout the country, reporting that a document appeared on the opinions page of the U.S. Supreme Court’s website briefly Wednesday morning that, for all intents and purposes, looked like the decision in Moyle v. United States and Idaho v. United States.

These are the cases addressing whether Emergency Medical Treatment and Labor Act (EMTALA), the federal emergency room protections law, provides additional though limited abortion protections in states whose abortion exceptions only address the life of the pregnant person, not the health of that person.

The Supreme Court did not, however, issue any decision in those cases on Wednesday. In response to inquiries about the document and Bloomberg report, Patricia McCabe, the court’s public information officer, issued a statement on Wednesday afternoon:

The opinion in Moyle v. United States, No. 23-726, and Idaho v. United States, No. 23-727, has not been released.  The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website. The Court’s opinion in these cases will be issued in due course.

So, first things first: The document was not the final decision of the court — at least not now.

What was the document then?

Given that, per a version of the document eventually posted online by Bloomberg, the document was dated June 26, 2024, it is likely that the court was at least at some point planning on releasing the decision on Wednesday. The fact that it apparently had reached the Publications Unit certainly suggests, again, that it likely was, at some point recently, considered to be the final decision.

And yet. The bottom line is that it wasn’t ultimately issued on Wednesday, which means that, for some as of yet unknown reason, it was pulled — which then means that it might not be the final decision.

OK, we get it. What is in the document?

Given the apparent near-final status, however, it is worth highlighting what the document does say.

As Bloomberg and others have reported, the document, if it becomes the final decision, would dismiss the cases as improvidently granted. Referred to as a DIG, this means the justices shouldn’t have taken the cases — for now, at least — in the first place and does not resolve the underlying question that was the reason why the justices took the case. The decision also would end the stays on the district court’s injunction — meaning, here, that Idaho’s near-total abortion ban would be blocked insofar as and where it conflicts with EMTALA’s protections.

Given that the Supreme Court issued certiorari before judgment here — leapfrogging the U.S. Court of Appeals for the Ninth Circuit — to more quickly hear the case, DIG-ing it would be quite an admission from the court.

Justice Amy Coney Barrett has a concurring opinion in the document, joined by Chief Justice John Roberts and Justice Brett Kavanaugh. In it, she would acknowledge that granting cert before judgment here “was a miscalculation … because the parties’ positions are still evolving.”

In a concurring opinion in the document, Justice Elena Kagan would highlight for her and Justice Sonia Sotomayor that this move “will prevent Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman's health.”

Justice Sam Alito, per the document, would dissent, along with Justices Clarence Thomas and Neil Gorsuch, and would conclude, among much else, that “the text of EMTALA conclusively shows that it does not require hospitals to perform abortions.” They would criticize the court for “duck[ing]” the ultimate issue.

In addition to joining part of Kagan’s concurrence where Kagan would respond to Alito’s dissent, Justice Ketanji Brown Jackson had her own opinion in the document, partially dissenting because, as she would put it, “in my view, the Court is wrong to dismiss these cases as improvidently granted.” On that point — although diametrically opposed as to the result — she would agree with Alito. Of the ramifications of DIG-ing the case, Jackson would state, “[H]ow long must pregnant patients wait for an answer?”

What would the document’s decision mean?

This would, as Jackson’s statement in the document makes clear, not definitively resolve anything.

“[S]torm clouds loom ahead,” she would note, characterizing Alito’s dissent as being a statement that “[t]hree Justices suggest, at least in this context, that States have free rein to nullify federal law.” Noting that Barrett’s statement on behalf of Barrett, Roberts, and Alito takes no position on the ultimate issue, Jackson’s statement would also warn that “as of today, the Court has not adopted Idaho's farfetched theories— but it has not rejected them either.”

In her conclusion, Jackson would tell the country, “Today's decision is not a victory for pregnant patients in Idaho. It is delay.”

What’s more — and I’ll have much more on this if and when we get a decision — if the court DIGs the case, such a decision would do nothing to the decision in the case out of Texas, affirmed by the U.S. Court of Appeals for the Fifth Circuit, holding that EMTALA does not protect abortion care.

Wednesday, it turned out, was delay — but not how Jackson’s statement in the document would have meant it. Instead, the nation is left awaiting even the decision in this case, whether it be this document, some slightly altered version of this, or something else altogether.

Law Dork will have more on this when the decision actually comes down.

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The Supreme Court’s conservatives, making corruption easier

In actual decisions from the justices on Wednesday, the U.S. Supreme Court’s conservatives weakened federal anti-corruption laws.

The conservatives did so by ignoring the plain text of the statute at issue, a point Justice Ketanji Brown Jackson made for the liberal trio in dissent. Although the case involved a law regulating state and local actors, it was hard not to also read Jackson’s sharp dissent through the prism of the ethical questions raised about members of the Supreme Court over the past year and a half.

“Officials who use their public positions for private gain threaten the integrity of our most important institutions,” Jackson began her dissent.

The court was addressing 18 USC Section 666 — specifically a provision stating that any state or local official who “corruptly solicits or demands … anything of value from any person, intending to be influenced or rewarded” for business or transactions worth $5,000 or more can be guilty of the statute, assuming other conditions found elsewhere in the law are met as well.

The question was whether the law only covers bribes or whether it covers “gratuities” as well.

In the 6-3 decision, Justice Brett Kavanaugh wrote a counterfactual and atextual opinion for the majority, doing everything conservatives have accused past liberals on the court of doing and also, apparently, just getting some things wrong. Kavanuagh wrote:

The question in this case is whether §666 also makes it a crime for state and local officials to accept gratuities—for example, gift cards, lunches, plaques, books, framed photos, or the like—that may be given as a token of appreciation after the official act. The answer is no.

Oddly — or, more likely, conveniently — the only “example” at issue in the facts of James Snyder’s case before the justices is the “or the like” part of Kavanaugh’s misleading list.

Here, from Jackson, are the actual facts of what Snyder, the former mayor of Portage, Indiana, did after a member of his administration awarded multiple contracts to a local company, Great Lakes Peterbilt, run by Robert and Stephen Buha:

Snyder paid the Buha brothers a visit at their dealership. “I need money,” he said. … He asked for $15,000; the dealership gave him $13,000. When federal investigators heard about the payment and came calling, Snyder told them the check was for information technology and health insurance consulting services that he had provided to the dealership. He gave different explanations for the money to Reeder and a different city employee.

Employees at Great Lakes Peterbilt testified that Snyder never performed any consulting work for the dealership.

Facts pushed out of the way, Kavanaugh also all but skipped over the text of the statute — focusing instead on purpose, legislative history, effects, and reliance on broad constitutional principles that ultimately have little if anything do with the question before the court.

Undermining almost all federal criminal law aside from treason or other wholly federal matters, Kavanaugh wrote that state and local governments “often” regulate similar conduct regarding what he calls "gifts,” before declaring, “Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities.”

First, Kavanaugh was fixated on telling us that the law applies to “19 million” people — mentioning it six times in his decision. That’s how laws work. They apply to everyone covered by the law. I don’t really understand his point here besides that Kavanaugh trying, just by mere repetition, to make it sound like this would be some dramatic decision if the government won. (It wouldn’t, but there’s a lot about this decision that makes no sense.)

Second, that’s not what the government argued or Jackson described in dissent.

Third, it is absolutely not the $15,000 payment that Snyder sought or $13,000 that he received.

Finally, a question: Is Kavanaugh completely unaware of the existence of federal criminal law? A further section of his opinion suggests the answer very well could be no.

“The carefully calibrated policy decisions that the States and local governments have made about gratuities would be gutted if we were to accept the Government’s interpretation of §666,” Kavanaugh wrote later in the opinion, adding, “We should hesitate before concluding that Congress prohibited gratuities that state and local governments have allowed for their officials. After all, Congress does not lightly override state and local governments on such core matters of state and local governance.”

This is a federal government that literally puts people on trial facing the death penalty for crimes committed in states that have outlawed the death penalty. I cannot think of a more offensive “gutt[ing]” of a state’s decisions than that.

But, to water down anti-corruption laws, the conservatives are all about, in that situation, deferring to those state and local decisions.

That is not at all the worst of it.

Kavanaugh and the conservatives effectively wrote “or rewarded” out of the statute, just insisting that “the text of §666 for state and local officials now closely resembles the bribery provision for federal officials, §201(b), rather than the gratuities provision for federal officials, §201(c).”

Jackson wrote that this is just wrong, as a matter of fact and analysis:

There is much more in Jackson’s dissent highlighting other problems with Kavanaugh’s opinion for the court, but — given all else going on — I think that gets across the issues with the majority’s decision.

For his part, Justice Neil Gorsuch wrote a two-paragraph concurring opinion. He was “pleased to join” Kavanaugh’s bad opinion, but wanted to highlight how the “rule of lenity” was “what’s at work” in Wednesday’s decision. Gorsuch’s focus on the rule of lenity is not new — and not a bad thing — but it is weakly invoked here, given the facts of this case. Nonetheless, I am not going to dither on this point.¹

To return to the larger point of the secondary meaning of Jackson’s dissent — again, signed on to by Justices Sonia Sotomayor and Elena Kagan — she began the third paragraph of her dissent with a striking statement of the times: “Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.”

Well.

1. This paragraph was added after initial publication at 6:25 p.m.