The Supreme Court appeared divided during oral arguments Wednesday in a case involving whether states can determine if emergency departments may provide abortions to pregnant people in cases where their life is not in immediate danger, but their health may be.
“You’re sort of putting [federal] preemption on its head,” Justice Sonia Sotomayor said to Josh Turner, the Idaho Constitutional Litigation and Policy Chief, who represented the state of Idaho. “The whole purpose of preemption is to say that if the state passes a law that violates federal law, the state law is no longer effective,” whereas Idaho’s law attempts to supersede federal law, she said.
Justice Samuel Alito disagreed. “You go so far as to say that the [federal] statute is clear in your favor,” he said to U.S. Solicitor General Elizabeth Prelogar, who represented the federal government, which is opposing the Idaho law. “I don’t know how you can say that.”
Case Background
The oral arguments, which combined the cases of Moyle v. United States and Idaho v. United States, center around a federal law known as the Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA, which was enacted in 1986, provides that any patient who is in active labor or otherwise has a medical emergency threatening their life or health is entitled to be treated at any emergency department to stabilize their condition, regardless of their ability to pay. The law applies to any hospital that participates in the Medicare program, which includes nearly every U.S. hospital.
The question for the High Court revolves around how certain state abortion laws interact with EMTALA. With the overturning of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide, control over abortion rights has returned to the states, and 14 states have passed or enacted laws almost entirely banning abortion, while another seven states have banned the procedure after a certain number of weeks’ gestation (anywhere from 6 to 18 weeks).
In the case of Idaho — the state both cases focus on — its Defense of Life Act outlaws all abortions except in cases of rape, incest, or to save the life of the pregnant person; anyone who performs an abortion not covered by the exceptions faces up to 5 years in prison. The rape and incest exceptions only apply in cases where those crimes have previously been reported to the police.
What Constitutes Medically Necessary Care?
“In some circumstances, medical care that a state may characterize as an ‘abortion’ is necessary emergency stabilizing care that hospitals are required to provide under EMTALA,” attorneys for the federal government argued in an Aug. 2, 2022 brief filed with the U.S. District Court in Idaho. “Such circumstances may include, but are not limited to, ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infection or hemorrhage.”
The Idaho law “[makes] it a criminal offense for doctors to comply with EMTALA’s requirement to provide stabilizing treatment, even where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death,” the brief continued. “Under the Idaho law … any state or local prosecutor can subject a physician to indictment, arrest, and prosecution merely by showing that an abortion has been performed, without regard to the circumstances. The law then puts the burden on the physician to prove an ‘affirmative defense’ at trial.”
“Idaho’s abortion law will therefore prevent doctors from performing abortions even when a doctor determines that abortion is the medically necessary treatment to prevent severe risk to the patient’s health and even in cases where denial of care will likely result in death for the pregnant patient,” the attorneys wrote. “To the extent Idaho’s law prohibits doctors from providing medically necessary treatment, including abortions, that EMTALA requires as emergency medical care, Idaho’s new abortion law directly conflicts with EMTALA.”
For their part, attorneys representing the state of Idaho argue that the federal government is painting too broad a picture of the law. “Does EMTALA ever require Idaho medical professionals to perform a medical procedure prohibited by the [Idaho] statute? [Our argument] makes clear that the answer is ‘no,'” they wrote in an opposition brief filed the same month. “The government has failed to present any credible evidence of any pregnancy-related medical emergencies in Idaho requiring, under EMTALA, emergency medical treatment that will result in loss of the preborn child’s life but that the [Idaho] statute prohibits.” They note that an operation to treat an ectopic pregnancy, for example, is not prohibited by the law in question.
The attorneys also slam what they call “the rather absurd idea that this state’s prosecuting attorneys will in effect zealously second-guess the judgment of the medical professionals providing emergency medical treatment to pregnant women and thereby bring prosecutions against those involved whenever the treatment is related to the death of the preborn child — and do so as a matter of course, if not automatically,” something they say is an “absurd and misleading notion” as proven by a declaration of one of the state’s prosecuting attorneys, who says this would not happen.
Life-Threatening Versus Health-Threatening
The fact that EMTALA encompasses conditions that could affect a person’s health — not just whether they live or die — was a particular point of interest Wednesday for Justice Elena Kagan. “All of these cases are rare, but within these rare cases, there’s a significant number where the woman’s life is not imperiled, but she’s going to lose her reproductive organs,” Kagan said to Turner. “She’s going to lose the ability to have children in the future unless an abortion takes place. Now, that’s the category of cases in which EMTALA says, ‘My gosh, of course, the abortion is necessary to assure that no material deterioration [of her health] occurs.’ And yet Idaho says, ‘Sorry, no abortion here,’ and the result is that these patients are now helicoptered out of state.”
“The hypothetical you raise is a very difficult situation,” Turner replied. “These situations, nobody’s arguing that they don’t raise tough medical questions that implicate deeply theological and moral questions. And Idaho, like 22 other states, and even Congress and EMTALA, recognizes that there are two patients to consider in those circumstances,” he said, referring to the pregnant person and the unborn child. “And the two-patient scenario is tough.”
Kagan appeared unconvinced. “You know, that would be a good response if federal law did not take a position on what you characterize as a tough question,” she said. “But federal law does take a position on that question. It says that you don’t have to wait until the person is on the verge of death. If the woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient” by providing an abortion.
Justice Brett Kavanaugh wanted to know about differences between EMTALA and the Idaho law. “Is there any condition that you’re aware of where the Solicitor General says EMTALA requires that an abortion be available in an emergency circumstance where Idaho law, as currently stated, does not?” he asked Turner.
Turner said there was, and it had to do with mental health emergencies. He noted that “the [Biden] administration says [abortion] is not on the table” as the only treatment for a pregnant person experiencing a mental health emergency, and also says that “there are no professional organizations that set abortion as a standard of care.” However, he continued, “the American Psychiatric Association in a 2023 position paper says that abortions are imperative for mental health conditions.”
“That sounds like a necessity to me,” Turner said, “and I don’t know how, if a woman presents at 7 months pregnant in an Idaho emergency room and says, ‘I’m experiencing severe depression from this pregnancy; I’m having suicidal ideation from carrying this pregnancy forth,’ that [abortion] wouldn’t, under the administration’s reading, be the only stabilizing care.”
The law is definitely affecting care in Idaho, Jim Souza, MD, chief physician executive of St. Luke’s Health System, in the Boise area, said last week during an online event sponsored by the American Civil Liberties Union. “During 2023, when Idaho’s law was not in effect for emergency medical conditions, only one pregnant patient presenting to an emergency room was transferred out of state for care,” he said. “In the few months since Idaho’s law has been in effect, six patients with medical emergencies have already been transferred out of state for [pregnancy] termination. And if we annualize that, we can anticipate up to 20 patients needing out-of-state care this year alone.”
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