For the second time in a month, the US supreme court on Wednesday heard arguments in a major abortion-rights case, the second to reach the justices since they overturned Roe v Wade two years ago.
Wednesday’s case involves a 1986 federal law called the Emergency Medical Treatment and Active Labor Act, or Emtala, which requires hospitals that receive federal dollars to stabilize the health of patients who show up at their emergency rooms with medical emergencies. The Biden administration has sued the state of Idaho, arguing that its ban clashes with Emtala because Idaho only permits abortions in medical emergencies if a woman’s life is at risk – a higher threshold than Emtala.
Tensions flared at multiple moments during the two-hour hearing. The court’s three liberal justices – all of whom are women – spent several minutes emphasizing the medical and legal dilemmas unleashed by bans like Idaho’s, while conservative justice Samuel Alito raised an anti-abortion theory that would ultimately lead to the end of abortion writ large. By the end of the hearing, conservative justice Amy Coney Barrett appeared to be the most skeptical of Idaho’s arguments, but the court seemed largely divided along ideological lines.
Elizabeth Prelogar, the US solicitor general, emphasized the danger now facing women who show up in crisis at Idaho emergency rooms.
“If a woman comes to an emergency room facing a grave threat to her health, but she isn’t yet facing death, doctors either have to delay treatment and allow her condition to materially deteriorate, or they’re airlifting her out of the state so she can get the emergency care that she needs,” Prelogar said. “One hospital system in Idaho says that, right now, it’s having to transfer pregnant woman in medical crisis out of the state about once every other week. That’s untenable and Emtala does not countenance it.”
The case is a test of one of the Biden administration’s chief efforts to protect abortion rights. Shortly after the supreme court overturned Roe and allowed states to outlaw abortion, the administration issued guidance clarifying that Emtala requires hospitals everywhere to perform abortions if patients need them in emergencies.
A federal judge initially sided with the Biden administration, stopping Idaho from enforcing the parts of the ban that conflicted with Emtala. But the supreme court in January issued an order allowing Idaho’s full abortion ban to take effect.
Idaho, which is also represented in the case by the powerful Christian law firm the Alliance Defending Freedom, has argued in court papers that its ban does not conflict with Emtala, in part because Emtala does not mention abortion and cannot compel doctors to offer care that is illegal under state law.
Liberal justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor hammered Joshua N Turner, a lawyer for Idaho, on when and if doctors could intervene in cases where a woman’s health is at risk but her life is not yet threatened. At one point, Sotomayor read off a list of cases of women whose healthcare was delayed due to abortion bans, including the story of a woman whose abortion was delayed to the point that she lost her pregnancy and then had to get a hysterectomy.
“You’re telling me the doctor there couldn’t have done the abortion earlier?” Sotomayor asked Turner.
“It goes back to whether a doctor can in good faith medical judgment – ” Turner started to say.
“That’s a lot for the doctor to risk,” Sotomayor interrupted. A provider who violates Idaho’s ban could face up to five years in prison.
Coney Barrett, the sole woman among the conservative majority, seemed taken aback by Turner’s claim that doctor could be prosecuted for performing an abortion in order to protect a woman’s health. While Turner insisted that Idaho’s state legislature did not mean for its ban to apply to doctors acting in good faith to save a woman’s life, Coney Barrett asked: “What if a prosecutor thought differently?”
“That, Your Honor, is the nature of prosecutorial discretion,” Turner replied. “And it may result in a case.”
Idaho is one of seven states with laws on the books that require a patient’s life to be at risk before an emergency abortion can be performed.
Idaho has also argued that Emtala requires providers to treat an “unborn child”. Justice Samuel Alito, a diehard conservative, brought up that phrase, indicating that Emtala is meant to imply that doctors have two equal patients when a pregnant woman shows up at an ER: the woman and her fetus.
“It seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty,” Alito said.
Prelogar insisted that phrase, added to Emtala in 1989, was meant to ensure that hospitals treated women whose fetuses were in crisis while they were not.
“The statute did nothing to displace the woman herself as an individual with an emergency medical condition,” Prelogar replied. “And in many of the cases you’re thinking about, there is no possible way to stabilize the unborn child because the fetus is sufficiently before viability that it’s inevitable that the pregnancy is going to be lost.”
The pair went back and forth for several minutes before Alito added: “Nobody is suggesting that a woman isn’t an individual, that she doesn’t deserve stabilization.”
But the exchange evoked the specter of fetal personhood, a priority of the anti-abortion movement that aims to endow fetuses with full legal rights and protections – even if those rights conflict with those of the woman carrying the fetus. Enshrining fetal personhood across the US – which is also a goal of the anti-abortion movement – would dramatically rewrite vast swaths of US law and ban abortion entirely.
The consequences for abortions in medical emergencies, like those at issue in the Wednesday arguments, are unclear; although anti-abortion activists have spent years pursuing fetal personhood, the end of Roe has forced them – and the rest of the nation – to reckon for the first time with its real-world consequences.
Wednesday’s hearing comes just weeks after the court heard arguments in another abortion rights case, which involved the availability of a common abortion pill and the Food and Drug Administration’s ability to regulate it. Lawyers for the Alliance Defending Freedom also argued that case on behalf of anti-abortion activists. Both arguments have significant implications for the federal government’s power to regulate healthcare.
If anti-abortion states prevail, “you’re basically deconstructing the entire way that we manage health nationally in this country,” said Gerson Smoger, chair of the Physicians for Human Rights board of directors anda co-author of an amicus brief in the Idaho case. “There has to be some baseline that we have, nationally.”
Rulings in both the Emtala and abortion pill cases are expected in June.
