In Murthy v. Missouri (No. 23-411) and Moyle v. United States (No. 23-726), Justice Barrett cemented her new role as the leader of a Coalition of the Unwilling (to adjudicate on the merits), joined by Justices Sotomayor and Kagan (and sometimes Jackson) on the left and the Chief and Justice Kavanaugh on the right. In each case, Barrett wrote for a majority that avoided reaching legally and politically fraught merits questions by deciding the matter on other grounds—lack of standing in Murthy and changed circumstances warranting dismissal of the petition as improvidently granted in Moyle. And each decision provoked a fiery dissent from Justice Alito (joined by Thomas and Gorsuch) accusing the coalition of artificially dodging important legal questions.
Let’s start with Murthy, where the Court brushed back a First Amendment challenge concerning the Biden Administration’s alleged “relentless covert campaign of social-media censorship” during the pandemic, holding that none of the plaintiffs (including individuals and the States of Louisiana and Missouri) had standing to sue.
Murthy is one of three cases this term involving the interplay of free speech and content-moderation policies on social-media platforms. (The other two were decided in yesterday’s consolidated opinion in Moody v. NetChoice, where the Court vacated two lower courts’ decisions about the validity of state laws regulating social-media platforms’ content moderation policies based on those courts’ erroneous applications of the standards governing facial challenges under the First Amendment.) During the height of the COVID-19 pandemic, social-media platforms like Facebook and Twitter played host to a significant amount of false and misleading information about the virus (as well as information that was thought to be false and misleading, but may in fact have had at least a kernel of truth). When it assumed office, the Biden Administration pressured these platforms to do more to enforce their existing content-moderation policies against those posting false or misleading information about the pandemic, as well as election-related misinformation. Surgeon General Vivek Murthy, for example, issued a health advisory encouraging platforms to take steps to prevent misinformation “from taking hold,” and the CDC frequently alerted platforms to COVID-19 misinformation “trends” and flagged specific posts for removal. The FBI, meanwhile, communicated with platforms about election misinformation in advance of both the 2020 and 2022 elections.
Claiming coercion and censorship, a group consisting of five individual social-media users and the States of Louisiana and Missouri sued dozens of Executive Branch agencies and officials (including Murthy) in the Western District of Louisiana. They alleged that the officials pressured the social-media platforms to censor their speech in violation of the First Amendment. The District Court agreed and entered a broad preliminary injunction, prohibiting a wide range of executive branch officials and agencies from communicating with social-media platforms. The Fifth Circuit pared back that injunction to a narrower set of agencies more directly involved in the alleged censorship campaign, but otherwise left it in place. The Supreme Court vacated the injunction—but not on the merits; instead, if held that none of the plaintiffs had standing to sue.
Writing for the Chief, and Justices Sotomayor, Kagan, Kavanaugh, and Jackson, Justice Barrett explained that the case “begins and ends with standing.” The plaintiffs’ theories of standing, she observed, depended on the platforms’ actions—i.e., whether and how they enforced their content-moderation policies—but the plaintiffs didn’t seek to enjoin the platforms from enforcing their content-moderation policies. Instead, they sought to enjoin government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future. “The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges.” First, a federal court cannot redress injuries that result from the independent actions of third parties not before the court. Even if the Administration were enjoined from pressuring the platforms, the platforms might well carry on enforcing their content-moderation policies against the plaintiffs in the same manner. Second, because the plaintiffs sought forward-looking injunctive relief, they bore the heavy burden of showing “a real and immediate threat of repeated injury.” They’d have to show, in other words, that they (i.e., the particular plaintiffs) faced a real an immediate threat of censorship in the absence of an injunction.
Having laid out the framework, Justice Barrett proceeded to apply it against each plaintiff in turn, finding that all lacked standing. Barrett showed little tolerance for speculation or conjecture, noting that there had been extensive discovery in the District Court: If the plaintiffs could demonstrate standing, they would have the evidence to do so already. While the record before the District Court showed that the Administration certainly encouraged the platforms, it also amply demonstrated that the platforms had independent incentives to moderate content and often exercised their own judgment in doing so. Indeed, the record demonstrated that the platforms had commenced the alleged campaign of censorship before the Administration’s challenged interference began. The Fifth Circuit, Barrett said, erred in attributing all of the platforms’ decisions to the defendants, and not the platforms, themselves. Barrett had little difficulty dispensing with the state plaintiffs and most of the individuals. She acknowledged that one individual, Jill Hines, had made a stronger showing than the others, but even her claims of causation and redressability were tenuous: Facebook had started targeting her posts before the White House began communicating with it; and even if she could show some past coercion, that would not demonstrate that she faced a real and immediate threat of future injuries, as necessary to demonstrate standing for forward-looking injunctive relief.
In sum, Justice Barrett’s majority concluded that the plaintiffs were asking the courts to “conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics,” without first establishing “any concrete link between their injuries and the defendants’ conduct.” Under existing standing rules, Barrett concluded, federal courts cannot exercise that sort of “general legal oversight” of the other branches of government.
Justice Alito, joined by Thomas and Gorsuch, fired off an angry dissent, though his anger was directed less at the majority’s standing analysis than at the “far-reaching and widespread censorship campaign” that, according to the District Court, high ranking Administration officials had conducted against “Americans who expressed certain disfavored views about COVID-19 on social media.” In Alito’s view, if the District Court’s assessment was correct, “this is one of the most important free speech cases to reach this Court in years.” The speech allegedly targeted—even if some of it “was undoubtedly untrue or misleading [or even] downright dangerous”—is of the type warranting the greatest First Amendment protection, i.e., speech concerned with democratic self-government and advancing “humanity’s store of knowledge, thought, and expression in fields such as science, medicine, history, the social sciences, philosophy, and the arts.” (In other words, Alito seemed to be saying, “this ain’t crush videos.”)
Justice Alito focused his attention on the alleged interventions of a few federal officials from the White House and Surgeon General’s Office with one social-media platform, Facebook, targeted at one particular plaintiff, Jill Hines, an anti-mask/anti-vaccine healthcare activist who directs “Health Care Freedom Louisiana.” Hines was “deplatformed” by Facebook as a result of direct threats made by the Administration, Alito said. Therefore, she “was indisputably injured,” and her injuries were plainly “caused by and traceable to censorship that the officials coerced.” The majority had also acknowledged that Hines may be able to show direct injury and traceability, but concluded that she could not demonstrate a real and immediate threat of future injuries, as necessary to have standing for the injunctive relief she thought. But Alito found that Hines was “threatened with more of the same [after] she brought suit,” making it likely enough that she would suffer future injuries absent judicial intervention.
Lurking in the background of Alito’s dissent (though not far from the forefront) was a recognition that private social-media platforms are now a leading source of news and information for most Americans, with enormous power to favor or disfavor certain opinions. At the same time, these platforms are “more vulnerable to Government pressure than other news sources,” since they rely on Section 230 of the Communications Decency Act to avoid liability for the content they host, and they could be destroyed by a federal antitrust suit. To Alito, therefore, the Court should be more vigilant about ensuring that the Government does not coerce social-media platforms to suppress disfavored speech than it is about policing access to federal courts.
In Moyle v. United States (No. 23-726), the Court took a different approach to avoiding the merits of a politically fraught issue: Whether the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute that requires hospitals receiving federal funds to “stabilize” any patient before transferring her to another facility, preempts the Idaho Defense of Life Act, which (post-Dobbs) criminalizes abortion except where necessary to save the life of the mother. Here, the Coalition of the Unwilling decided to DIG the case—i.e., dismiss the writ of certiorari as improvidently granted—because (in Justice Barrett’s words) “the shape of the[] case[] has substantially shifted since we granted certiorari.” Once again, Justices Alito, Thomas, and Gorsuch were left fuming about the Court’s punt (this time joined, for different reasons, by Justice Jackson, as well).
Here’s what the case would have been about. Following the Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), Idaho (among other states) criminalized most abortions, while allowing physicians to raise an affirmative defense that “the abortion was necessary to prevent the death of the pregnant woman.” At the same time, the Department of Health and Human Services issued a guidance document to “remind hospitals of their existing obligation to comply with EMTALA.” EMTALA is a Reagan-era spending statute that prohibits hospitals receiving federal funds from turning away patients experiencing medical emergencies. Among other things, the statute requires such hospitals to “scree[n]” and “stabilize” any individual who comes to an emergency room with an emergency medical condition. And, if the patient is a pregnant woman, it requires the hospital to stabilize both “the woman” and “her unborn child.” In its guidance document, HHS stated that, if a physician believes that “abortion is the stabilizing treatment necessary to resolve” a pregnant woman’s medical emergency, then they “must provide that treatment” and any contrary state law is “preempted.”
Just before Idaho’s abortion ban was to take effect, the Government sued the State seeking to enjoin the law “to the extent it conflicts with EMTALA.” The District Court held an evidentiary hearing and issued a preliminary injunction, based on its findings that Idaho’s ban would prohibit the termination of ectopic pregnancies and that a physician could only perform an abortion if the woman’s death would otherwise be objectively “imminent.” Even then, the physician would only have an affirmative defense to prosecution. Because EMTALA (according to the District Court, crediting HHS’s reading) required abortion in some cases where the state law would prohibit it, the state law was preempted to the extent of that conflict. Idaho appealed to the Ninth Circuit, which initially stayed the injunction but then (en banc) vacated the stay and set the case for oral argument. However, before the Ninth Circuit issued any judgment on the merits, the Supreme Court intervened to stay the District Court’s injunction and, treating Idaho’s stay application as a petition for certiorari before judgment, granted the petition.
After briefing and argument, a majority of the Court apparently had second thoughts about their earlier decisions to grant cert before judgment and stay the District Court’s injunction. Though the Court’s order DIGing the case provides no explanation, a pair of concurrences fills in the gaps. Justice Barrett, joined by the Chief and Justice Kavanaugh, explained that the Court’s decisions to stay the injunction and grant cert before judgment “were premised on the belief that Idaho would suffer irreparable harm under the injunction and that the[] case[] w[as] ready for the Court’s immediate determination.” However, subsequent briefing and oral argument have “shed more light on this case,” showing that these earlier decisions were improvident. In particular, both parties had softened their positions to a degree that reduced the apparent conflict between Idaho’s abortion ban and EMTALA. The Government, for example, had disclaimed any interpretation of EMTALA that would suggest “abortion is ever required as stabilizing treatment for mental health conditions” and confirmed that federal conscience protections apply in the EMTALA context. Meanwhile, Idaho confirmed that the State’s law did not prohibit emergency abortions to treat certain conditions—including PPROM, placental abruption, and preeclmapsia—because an intervention in those cases did not come within the state law’s definition of an “abortion” as construed by the Idaho Supreme Court. As Justice Barrett noted, “[a] grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving.” In addition, Idaho had “raised a difficult and consequential argument, which [it] did not discuss in the[] stay application[], about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.” Justice Barrett felt it would be inappropriate for the Supreme Court to weigh in on that argument before the lower courts.
Having dismissed the writ, Justice Barrett also agreed that the Court was correct to vacate the stay of the District Court’s injunction. In particular, she felt that the changes in the parties’ positions meant that Idaho’s purported “irreparable injur[y]” was not as significant as previously believed, because “based on the parties’ representations, it appears that the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances.”
Justice Kagan (joined by Justice Sotomayor and, in part, by Justice Jackson) also concurred in the decision to dismiss the writ and vacate the stay, albeit from the perspective of having believed the Court should never have gotten involved in the first place. In Kagan’s view, “Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute.” Justice Kagan summarized the dispute this way: “EMTALA requires hospitals to provide abortions that Idaho’s law prohibits. When that is so, Idaho’s law is preempted.” Case closed (though notably without even mentioning the argument that the federal government can’t preempt state criminal laws through spending-clause legislation where federal funds are accepted by private parties, not the state). While Kagan made clear that she would have affirmed the District Court’s injunction, she (and Sotomayor) were content to DIG the writ and vacate the stay, as that had the effect of “prevent[ing] Idaho from enforcing its abortion ban when the termination of a pregnancy is needed to prevent serious harms to a woman’s health.”
Justice Jackson was not satisfied with that result. Though she joined Justice Kagan’s statutory analysis, agreeing that “EMTALA plainly requires doctors to provide medically necessary stabilizing abortions in limited situations” and that “[t]o the extent that Idaho law conflicts with EMTALA, the State’s law must give way,” and in the Court’s decision to vacate the stay, Justice Jackson dissented from the Court’s decision to dismiss the writ as improvidently granted, principally based on her view that Idaho had cynically changed positions once it got before the Supreme Court. For Justice Jackson, DIGs should be reserved for situations where circumstances come to light that “were not fully apprehended at the time certiorari was granted,” not as “a tool for the Court to use to avoid issues that it does not wish to decide.” Here, the reasons for granting cert are still present in the case, notwithstanding subsequent developments: At most, the range of circumstances in which EMTALA conflicts with state law have been narrowed, but all agree there is still some conflict. “If anything,” Jackson argued, “the need for a clear answer to the Supremacy Clause question has only increased in the intervening months,” as additional states have enacted similar abortion bans. “This pre-emption issue is not going away anytime soon and will almost certainly return to this Court,” so the Court should not put off deciding it. (Indeed, as Jackson pointed out, there is currently a cert petition before the Court brought by the Solicitor General from a Fifth Circuit judgment affirming an injunction going the other way, precluding the Government from enforcing EMTALA’s requirements in Texas.) While Justices Kagan and Sotomayor celebrated the fact that the Court’s decision reinstated the District Court’s injunction, Justice Jackson warned that the “decision is not a victory for pregnant patients in Idaho” but rather “a delay.” (Like Kagan and Sotomayor, however, Justice Jackson completely ignored Idaho’s argument that EMTALA cannot preempt state law because it was enacted under the Spending Clause.)
Like Justice Jackson, Justices Alito, Thomas, and Gorsuch, criticized the Court for dismissing the writ, but predictably they had diametrically opposite views on the merits. As Alito put it, “[t]he Government’s preemption theory is plainly unsound. Far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her ‘unborn child.’” While Justice Kagan had explained away that reference (the statute was amended after a series of cases in which hospitals transferred pregnant women without ensuring that their unborn children were also stabilized), for Alito it went “without saying that aborting an ‘unborn child’ does not protect it from jeopardy,” so EMTALA could not be read to require abortions as a means of stabilizing care. Alito further argued, “[f]or those who find it appropriate to look beyond the statutory text” (which, in this instance, apparently included Justices Thomas and Gorsuch, as they joined this portion of the dissent), the context in which EMTALA was enacted made it clear that Congress did not view it as requiring hospitals to perform abortions in any circumstances. After all, the same Congress that enacted EMTALA also enacted the so-called Hyde Amendment, which precluded federal funds from being used for abortions, and President Regan signed both. It would be strange to think that the same Congress that insisted on no federal funds being used for abortions would have also insisted that any hospital receiving federal funds must perform abortions when necessary to “stabilize” a pregnant woman, even if state law prohibited it. Finally, Justice Alito called “a third strike against the Government’s position,” noting that EMTALA is an exercise of Congress’s spending power. As such, he concluded any ambiguity in its text must be resolved against the Government. There could be no serious argument, he felt, that EMTALA unambiguously requires recipients of federal funds to perform abortions, but even if it did, Idaho (which does not run state hospitals that accept Medicare) was not the recipient of these funds. Idaho should not be bound by supposed terms that it never accepted.
Because Justice Alito concluded that the Government’s preemption argument was certain to fail, he felt the Court “should reject the Government’s interpretation and put th[e] matter to rest,” rather than punt to another day. But even if the Court were correct in DIGing the case, Justice Alito (here writing alone) excoriated the majority for vacating the stay of the District Court’s injunction. That injunction was only proper, he argued, if the Government could make a strong showing that it was likely to prevail on the merits. And his prior analysis had, he maintained, showed that the Government was instead destined to lose. Alito criticized Justice Barrett’s argument that the degree of “irreparable harm” to Idaho from the injunction had been significantly reduced by parties’ respective softening of position: Even if Idaho was permitted to enforce its abortion ban in the “vast majority of circumstances,” no one doubts that there are some circumstances in which an abortion Idaho would like to criminalize is instead required under the Government’s reading of EMTALA. Quoting prior opinions from the Chief and Justice Kavanaugh, Alito noted that “any time a State is enjoined from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Thus, whatever narrowing might have occurred, Idaho still faced an irreparable injury from the District Court’s injunction, and Alito (alone) felt there was no justification for leaving it in place.