Idaho pushes SCOTUS for action on ER abortion care shadow docket case

Idaho's Republican attorney general told the Supreme Court that an appeals court ruling "shows" that Idaho is likely to win in its fight against the Biden administration.

The U.S. Supreme Court has not acted, in more than a month, on requests from Idaho and Idaho lawmakers to weigh in on litigation over the interplay between federal emergency room protections and the state’s near-total abortion ban.

But now, the state’s Republican attorney general is pushing the court to act, pointing to the Jan. 2 opinion from the U.S. Court of Appeals for the Fifth Circuit in similar litigation out of Texas as a reason for the court to act now.

[Update: On Jan. 5, the U.S. Supreme Court granted certiorari in the Idaho case and will be hearing arguments in the case in April.]

The issue presents a crisp picture of how far-right groups are using the levers of government to push arguments from right-wing ideas to mainstream Republican positions to established law.

Idaho — represented by lawyers from Republican Attorney General Raúl Labrador’s office, the Alliance Defending Freedom (which Law Dork reported is doing the work “without charge”), and the conservative D.C. law firm of Cooper & Kirk — asked the justices in November 2023 to put an injunction limiting the state’s full enforcement of its abortion ban on hold while an appeal is pending at the U.S. Court of Appeals for the Ninth Circuit. The injunction has partially blocked enforcement of the ban to the extent it conflicts with the requirements of the Emergency Medical Treatment and Active Labor Act (EMTALA) for most of time since it was issued in the summer of 2022.

As discussed previously at Law Dork, the Biden administration — in the wake of the decision in Dobbs v. Jackson Women’s Health Organization — issued guidance in July 2022 reminding hospitals of their obligations to provide “stabilizing” care under EMTALA to patients with any “emergency medical condition,” including if that care is an abortion.

It is important, in the course of discussing this litigation, to think about and realize how narrow these protections are. This is guidance that provides, at most, a small additional band of protection beyond the narrow exceptions in conservative states’ post-Dobbs abortion bans. And yet, we almost certainly will be seeing this dispute being decided by the Supreme Court in the next year or two.

So, what happened? Texas sued the Biden administration over the guidance, and the Biden administration Justice Department sued Idaho over its near-total abortion ban. In short, Texas has succeeded in its litigation and the Biden administration has succeeded in the Idaho litigation — with both obtaining injunctions in their respective lawsuits. Idaho, however, has been appealing its loss below and is asking to have the injunction stayed during the appeal. After some shenanigans at the Ninth Circuit, which I wrote about previously, Idaho took its stay request to the Supreme Court.

The Supreme Court has not acted on the request. Meanwhile, briefing continued at the Ninth Circuit, and an 11-judge limited en banc panel of the Ninth Circuit is due to hear arguments in the appeal on Jan. 23.

Then, on Jan. 2, a three-judge panel of the Fifth Circuit — all Republican appointees, including two Trump appointees — ruled in the similar case out of Texas, siding with Texas and against the Biden administration in concluding that EMTALA does not protect abortion care and upholding the injunction against enforcement of the guidance against Texas and two groups of anti-abortion medical providers. The anti-abortion groups are represented by Alliance Defending Freedom — the same far-right Christian legal advocacy organization representing Idaho.

On Jan. 3, Idaho sent the Supreme Court a copy of the Fifth Circuit opinion as supplemental authority, claiming that it “shows that the State of Idaho is likely to prevail on the merits of its appeal.” As such, Idaho Acting Solicitor General Joshua Turner argued, the Fifth Circuit’s decision “underscores the appropriateness of granting” Idaho’s stay request.

Let’s step back here. A conservative state, working in tandem with a far-right legal group, went to federal court in Texas to block narrow federal abortion protections, won at the district court, and won at the most conservative appeals court in the nation. A second state that has lost in court so far, and is also represented by the same far-right legal group, is now using that appeals court decision to tell the Supreme Court that its “interpretation of EMTALA” is “likely to prevail” in court.

Then, Turner goes further, asserting that the Fifth Circuit’s decision provides “additional support” for granting merits review of the Idaho case before the Ninth Circuit even hears the appeal, referred to as certiorari before judgment. The logic here is fuzzy, with Turner asserting that the Fifth Circuit’s merits decision on the guidance and injunction “conflicts directly” with the Ninth Circuit’s decision on whether to grant a stay in the Idaho case while it considers the appeal. (That’s not how it works.)

This is both ordinary and … not.

Filing supplemental authority is ordinary. Using a Fifth Circuit decision to tell the Supreme Court that it “shows” the Supreme Court’s likely outcome is a bit much. Using a Fifth Circuit decision to argue that a shadow docket stay application in another case should be treated as a petition for cert before judgment and that the Supreme Court should just review that case on the merits now is a lot much.

The EMTALA issue is important, and almost certainly will make its way to the Supreme Court on the merits soon enough. Idaho’s effort to press the court into action, however, is not the right way to get there.