Oops (Updated and Moved to Top)

Final Update: The Court released the opinion Thursday.

SCOTUS [on Wednesday] inadvertently posted the opinion in the EMTALA case, dismissing the writ as improvidently granted and lifting the stay of the district court injunction prohibiting enforcement of the law. (Bloomberg has the story behind a paywall). Bloomberg says the vote was 6-3 (Thomas, Alito, Gorsuch dissenting) as to the DIG and stay, although it also says Jackson wrote to say she would not have dismissed (which sounds like a dissent, if the disposition is a DIG).

The upshot is that the district court's preliminary injunction prohibiting Idaho from enforcing its abortion ban remains in effect pending continuing litigation.

Let the conspiracy theories of how this happened bloom.

Update: Bloomberg posted an oddly formatted draft. If it is authentic, here is the deal:

    • Six Justices vote to DIG and lift the stay of the district court injunction. Three vote not to DIG but to keep the stay in place. Jackson votes to keep the stay in place but not to DIG.

    • Kagan concurs with Sotomayor to argue that the Court never should have taken the case and with Sotomayor and Jackson to respond to Alito's dissent, especially his stupid argument (which he previewed during arguments) that the reference to protecting an unborn child means EMTALA does not require abortions.

    • Barrett concurs with the Chief and Kavanaugh to argue the DIG is appropriate because the case changed between the grant of cert and now--both from the U.S. positions as to federal law (especially as to conscience objections) and from Idaho as to the scope, meaning, and application of state law. Given these changes and the "difficult and consequential" argument that the Spending Clause cannot preempt state criminal law, the Ninth Circuit should consider the new issues in the first instance.

    • Jackson argues the Court should decide the case--having taken it, heard argument, and distorted the litigation process, the Court should decide rather than delay the issue. In particular, she criticizes Barrett's view that Idaho's legal representations before SCOTUS have changed state law or how state law will affect doctors in ERs, such that the supposed injuries to Idaho that justified intervention have gone away.

    • Alito, joined by Thomas and Gorsuch, explains why EMTALA does not require abortions as a matter of text and the special rules for finding preemption from a Spending Clause enactment. Gorsuch does not join the portion dissenting from the vacatur of the stay.

This clearly illustrates the theory of a 3-3-3 Court. So speculation on what happened at conference and what changed between conference and now? Was the Chief/Kavanaugh/Barrett planning to go with Thomas/Alito/Gorsuch, then Kagan/Sotomayor/Jackson got them to cool their heels for now? Were they willing to delay knowing: 1) President Trump makes this issue go away in 2025 and 2) the DIG leaves in place a Fifth Circuit decision that EMTALA does not preempt, pending the Ninth Circuit creating a true circuit split worthy of review? Did that group not want to hand conservatives another defeat by joining with Sotomayor/Kagan/Jackson, knowing they could wait (see the prior ¶?)? Something else?

To be clear, Justice Jackson is not happy here: "Today's decision is not a victory for pregnant patients in Idaho. It is a delay." It gives "a few months--maybe a few years--during which doctors may no longer need to airlift pregnant patients out of Idaho."