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Supreme Court has another embarrassing misstep in the release of an abortion opinion


At the Supreme Court today, another embarrassing misstep in the release of an opinion about abortion. Bloomberg News reports that this morning, as the justices were announcing opinions on other matters, the court briefly posted a decision that would reinstate a lower court order allowing hospitals in Idaho to perform emergency abortions to protect the health of the mother. NPR legal affairs correspondent Nina Totenberg reports on today's actions.

NINA TOTENBERG, BYLINE: Patricia McCabe, the court's press officer, acknowledged that the court's publications unit inadvertently uploaded a document online, but she did not confirm that the document is the latest or final version. If it is, it means that the justices have, for now at least, retreated from a previous ruling that had temporarily allowed an Idaho law to take effect making emergency abortions illegal in the state if they were to save the mother's health but not her life. Instead of actually ruling on whether the Idaho law conflicted with a federal law on emergency care, the justices, by a 6 to 3 vote, dismissed the case as improvidently granted, with Chief Justice Roberts and Justices Kavanaugh and Barrett joining the court's three liberals in the majority. What that means is that the case now goes back to the lower courts for further litigation as to whether the state law, which allows emergency abortions only to save the life of the mother, is preempted by a federal law requiring hospitals to provide emergency treatments to all patients.

The briefly posted court document includes two separate concurring opinions, according to Bloomberg. In one, Justice Elena Kagan says that the high court's decision, quote, "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." In the other, Justice Ketanji Brown Jackson says, quote, "today's decision is not a victory for pregnant patients in Idaho. It's a delay. While this court dawdles and the country waits," she wrote, "pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires."

Of course, we don't know for sure whether today's inadvertent opinion release was the real deal or whether the justices are still wrangling behind the scenes. But in a second opinion today, this one official, the court handed a major victory to the Biden administration, throwing out a lower court ruling that had placed major restrictions on the ability of government officials to communicate with social media companies about their content moderation policies. While the court's ruling was procedural, it was nonetheless a stark repudiation of two lower courts in the south and their eagerness to embrace conspiracy theories about alleged government coercion of social media companies.

Writing for a liberal conservative coalition of six justices, Justice Amy Coney Barrett said that neither the five individuals nor the two states who sued the government had legal standing to be in court at all. She said they presented no proof to back up their claims that the government had pressured social media companies like Twitter and Facebook into restricting their speech. Unfortunately, she said, the 5th Circuit Court of Appeals, quote, "relied on factual findings that are clearly erroneous." Law professor Paul Barrett - no relation to the justice - is deputy director of the Stern Center for Business and Human Rights at NYU.

PAUL BARRETT: Justice Barrett went out of her way to stress that facts matter and that the lower courts in this case embraced a fact-free version of what transpired between officials in the Biden administration and Facebook, Twitter and other social media platforms.

TOTENBERG: Justice Barrett said that at every turn, the alleged facts turned to dust and that the plaintiffs had failed to trace past or potential future harm to anything done by government officials. Indeed, the court said many of the actions taken by the social media platforms to modify content about COVID vaccines and other matters were taken before any contacts with government officials took place. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.