Bonus 86: The EMTALA Glitch

The accidentally disclosed punt in the Idaho emergency abortion case calls into question the Court's handling of that appeal—along with its insistence that decisions are released "when they're ready"

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

Obviously, I had to write about yesterday’s biggest news out of the Court—not the major rulings in the social media jawboning and public corruption cases (more on those on Monday), but the brief (and apparently inadvertent) posting to the Court’s website of the ruling in the EMTALA cases—Moyle v. United States and Idaho v. United States. Given the Court’s non-denial of the authenticity of the document, I think we can assume that what Bloomberg reported (and later posted) is real—and that the Court is set to issue a “DIG” (Dismissing certiorari as Improvidently Granted), the effect of which will be, for now, to put back into effect a district court injunction that barred Idaho from enforcing its abortion ban in cases in which it an abortion is necessary “stabilizing treatment” for a patient with an “emergency medical condition.”

The post that follows has three goals. First, I aim to describe exactly what the Court’s ruling would—and would not—actually do (once it officially comes down). Second, I want to put the Court’s impending punt (and, whoa Nellie, is it a punt!) into perspective, including how bad it makes the Court look for rushing to interject itself into this case in the first place (spoiler alert: pretty bad). Finally, there’s the pesky little matter of the glitch—and the very awkward counterexample it might be seen to provide to the Court’s long-running insistence that rulings are handed down as soon as they are ready. To make a long story short, the apparent EMTALA ruling sure looks like the Court trying to dodge a major political bullet—while accidentally revealing other quite problematic behaviors in the process.

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