Appeals court sets emergency abortion care case for argument — after the election
As Vice President Kamala Harris announces her veep pick, Minnesota Gov. Tim Walz, the Ninth Circuit provides another reminder of the contingent nature of this moment.
On Monday evening, the U.S. Court of Appeals for the Ninth Circuit laid out the next steps in the litigation over whether Idaho’s near-total abortion ban conflicts with federal emergency room protections.
In short, and as is the reality across much of the legal world these days, the outcome will not be known — arguments won’t even be held — until after 2024 election. And that, ultimately, means that the election outcome will affect how the case proceeds.
The Monday order from Chief Judge Mary Murguia sets a timeline for additional briefing in the Emergency Medical Treatment and Labor Act (EMTALA) case over the next months, with oral arguments to be held “during the week of December 9, 2024.”
The timing, ultimately, is due to the actions of the U.S. Supreme Court — which had taken the case away from the Ninth Circuit in January. But, after a half-year delay, it’s back at the Ninth Circuit.
The case began when the Biden administration sued Idaho in the aftermath of the Dobbs v. Jackson Women’s Health Organization decision and before the state’s abortion ban was due to go into effect. The Biden administration argued that EMTALA — in limited circumstances when necessary to stabilize a patient — requires emergency abortion care be provided. When EMTALA’s requirements conflict with state law, moreover, EMTALA controls. After a federal judge granted a preliminary injunction blocking Idaho from enforcing its ban to the extent it conflicts with EMTALA’s emergency care requirements, Idaho appealed.
When the full Ninth Circuit reversed a three-judge panel’s stay of the injunction, Idaho went to the U.S. Supreme Court asking for a stay of the injunction (with free legal help provided by the far-right Christian advocacy group Alliance Defending Freedom). Idaho also, however, asked for the Supreme Court to skip over the Ninth Circuit altogether — granting certiorari before judgment — to hear the case immediately. The Supreme Court agreed and heard the case in April, but couldn’t reach a decision — ultimately dismissing the case as “improvidently granted.”
In other words, they took it too early — something that Justice Amy Coney Barrett, in an opinion joined by Chief Justice John Roberts and Justice Brett Kavanaugh, essentially acknowledged in June.
Now, then, the case is back at the Ninth Circuit, and Murguia set out a path forward.
But, the path forward — and the case — will certainly change if Donald Trump wins in November. His 2025 administration will almost certainly change positions on EMTALA and withdraw from the litigation against Idaho — not to mention potentially supporting Texas’s position in mirror litigation out of Texas, where that state sued the Biden administration over their EMTALA guidance.
If that happens in the Idaho case, Idaho hospitals will have to return to literally needing to fly patients out of state to get abortion care when needed.
A final note: This isn’t even, necessarily, the last step at the Ninth Circuit. Because of how big the Ninth Circuit is — at 29 active judgeships — it has instituted a limited en banc procedure, in which the chief judge and 10 other randomly assigned judges from the circuit hear a case en banc. Once it issues its decision — and although the court is yet to do so since enacting the limited en banc procedure — it can, technically, hear the case with the full court of 29 judges if a majority of the court voted to do so.
Walzing into the fall
Minnesota Gov. Tim Walz is Vice President Kamala Harris’s pick to be her vice presidential running mate, the campaign announced Tuesday morning.
The website is updated, and the rally in Philadelphia is set for this evening.
I’ll have much more on the implications of the pick for a Harris administration in the days and weeks to come, but, for now, I think it’s important to highlight how calmly this all proceeded — something that I think is important on two fronts.
One: I think it says a lot about where Harris and her campaign are — and where they’ve gotten to in less than a month. It’s an incredible feat, and this bodes well for what she and her people learned from 2020 — and since.
Two: Mayyyyyybe campaigns don’t need to — and shouldn’t — take more than a year?
Just a thought!
Yes, nations manage to have an election cycle even less than the reduced time Harris is having and in the long run it seems like a positive development. It is different when we are starting from scratch -- Harris was the likely choice -- but our campaign system is still too long.
In the UK, political campaigns are limited to just six weeks. In the U. S., Donald J. Trump has been campaigning … NON-STOP … since 2015, if not before. He may need the attention, America does w.