Supreme Court justices, diving back into the battle over abortion access, seemed divided on Wednesday in a case pitting Idaho’s strict Republican-backed abortion ban against a federal law ensuring that patients can receive emergency care.
The justices listened to arguments in an appeal by Idaho officials of a lower court’s ruling that found the 1986 U.S. law at issue, the Emergency Medical Treatment and Labor Act (EMTALA), supersedes the state’s near-total ban in rare circumstances when they clash.
President Joe Biden’s administration, which sued Idaho over the abortion law, urged the justices to uphold that ruling.
The court, with a 6-3 conservative majority, showed no consensus among the conservative justices. Concerns were expressed, including what protections federal law extends to “unborn children” and whether Congress had clearly spelled out that EMTALA can mandate abortion in certain emergency cases.
Conservative Justice Brett Kavanaugh asked U.S. Solicitor General Elizabeth Prelogar, representing the administration, to respond to Idaho’s argument that EMTALA was meant to prevent emergency rooms from “patient dumping” – turning away uninsured patients – instead of addressing “abortion or other specific kinds of care.”
Prelogar stated that Congress used EMTALA to set a “baseline national standard of care” to ensure urgent conditions are addressed.
“Idaho cannot criminalize the essential care that EMTALA requires,” Prelogar added.
Revisit of Roe v Wade
The case led the Supreme Court to revisit the legal landscape it created with its June 2022 decision overturning the 1973 Roe v. Wade ruling that legalized abortion nationwide.
Idaho is one of seven states to implement a near-total abortion ban in the past two years with no exceptions to protect the health of pregnant patients, Prelogar said.
Idaho’s abortion “trigger” law, adopted in 2020, automatically took effect upon Roe’s reversal. The state law bans nearly all abortions unless needed to prevent a mother’s death, threatening doctors who violate it with two to five years in prison and loss of their medical license.
At the same time, EMTALA requires hospitals receiving funding under the federal Medicare program to “stabilize” patients with emergency medical conditions. Hospitals violating EMTALA can face lawsuits by injured patients, civil fines, and potentially the loss of Medicare funding.
The liberal justices pressed Joshua Turner, the lawyer for Idaho, to explain why the state permits emergency abortions to prevent a woman’s death but not to protect her health.
Terminating a pregnancy may be necessary to address numerous conditions in the woman that could lead to seizures, stroke, organ damage, or the loss of her uterus, according to medical experts.
“In rare cases, there’s a significant number where the woman… her life is not in peril but she’s going to lose her reproductive organs, she’s going to lose the ability to have children in the future, unless an abortion takes place,” liberal Justice Elena Kagan said.
Turner called these situations “difficult” and raised “tough medical questions that implicate deeply theological and moral questions.”
EMTALA
Following Roe’s demise, the Biden administration issued federal guidance stating that EMTALA takes precedence over state abortion bans when they conflict.
The Supreme Court in January allowed Idaho to enforce its law while agreeing to decide its legality.
The issue in the case is whether Idaho’s ban must yield to EMTALA when a doctor determines that the necessary “stabilizing care” is an abortion that would not meet Idaho’s narrow exception for preventing the mother’s death.
The liberal justices posed sharp questions to Turner over his contention that EMTALA can only require emergency care that a state chooses to make available.
Liberal Justice Sonia Sotomayor told Turner his argument turned “preemption on its head,” referring to the general principle that federal law trumps contradictory state laws.
Prelogar rebutted against Idaho’s claim that doctors could comply with both state and federal requirements, arguing that “the situation on the ground in Idaho is showing the devastating consequences” due to the “gap” between the two laws.
“One hospital system in Idaho says that right now it’s having to transfer pregnant women in medical crisis out of the state about once every other week,” Prelogar said. “That’s untenable and EMTALA does not countenance it.”
The conservative justices voiced concerns regarding the Biden administration’s legal challenge, although it was not clear which legal theory might garner a majority in the eventual ruling.
Row over EMTALA
Conservative Justice Samuel Alito told Prelogar that EMTALA also requires stabilizing care for a woman’s “unborn child.”
“Performing an abortion is antithetical to that duty,” Alito added.
Prelogar argued that provision of EMTALA did not displace the woman herself “as an individual with an emergency medical condition” when her health is in danger. Prelogar added that in many pregnancy emergencies there is no way to stabilize the unborn child because, before viability, “it’s inevitable that the pregnancy is going to be lost. But Idaho would deny women treatment in that circumstance even though it’s senseless.”
Questioned by conservative Chief Justice John Roberts, Prelogar said the administration’s stance would not require religiously affiliated hospitals with emergency rooms to perform abortions, nor would it require individual doctors who oppose abortion to perform the procedure.
“Our position is that EMTALA does not override either set of conscience protections,” Prelogar said.
Boise-based U.S. District Judge B. Lynn Winmill in 2022 blocked enforcement of Idaho’s law in cases of abortions needed to avoid putting the woman’s health in “serious jeopardy” or risking “serious impairment to bodily functions.”
