Health or life?

MARY REICHARD, HOST: Coming up next on The World and Everything in It: the abortion debate is back at the Supreme Court.

The justices heard arguments last week in a legal battle between the Biden administration and the state of Idaho. At issue is the state’s strong protections for the unborn.

NICK EICHER, HOST: Idaho law permits abortions when the mother faces risk of death, but not when the pregnancy threatens her bodily health. And Idaho defines abortion to include inducing labor when a baby is not yet viable.

The Biden administration says Idaho’s lack of a health exception puts it into conflict with a federal law known as EMTALA, the Emergency Medical Treatment and Labor Act.

REICHARD: EMTALA requires government-funded emergency departments to provide stabilizing treatment.

The Biden administration says when a woman shows up with pregnancy conditions that could lead to organ damage, hospitals must ignore state law and perform an abortion.

EICHER: Idaho argues the federal government cannot require hospitals to violate state laws. The legal question here was pre-emption: does federal law preempt state law in this situation?

REICHARD: But much of the argument focused on who decides when a mother’s physical health is more important than the life of her unborn child.

WORLD’s Leah Savas reports.

LEAH SAVAS: The court’s female justices cut to the chase on Wednesday. Just minutes into argument by Idaho Deputy Solicitor General Joshua Turner, they began grilling him about the scope of Idaho’s abortion exception. Here, Justice Sonia Sotomayor lists examples of pregnant women who faced risks to their bodily health.

JUSTICE SOTOMAYOR : Counsel, answer yes or no. He doesn't have -- he doesn't – cannot say that there's likely death. He can say there is likely to be a very serious medical condition --

TURNER: Yeah. Based on --

SOTOMAYOR: -- like a hysterectomy.

TURNER: Based on the --

SOTOMAYOR: Let me go to another one.

The question kept coming. Under what medical conditions could a doctor perform an abortion without violating Idaho’s law? Even conservative Justice Amy Coney Barrett pressed Idaho’s lawyer for clarity on when doctors would be covered by the abortion ban.

JUSTICE BARRETT: Does Idaho put out any kind of guidance? You know, HHS puts out guidance about what’s covered by the law and what’s not. Does Idaho?

TURNER: There are regulations. But I think the guiding star here is the Planned Parenthood v. Wasden case, which is a lengthy, detailed treatment by the Idaho Supreme Court of this law. And it made clear, the court made clear that there is no medical certainty requirement. You do not have to wait for the mother to be facing death.

But U.S. Solicitor General Elizabeth Prelogar argued for the government that EMTALA exists to protect women in these instances from laws like Idaho’s.

PRELOGAR: In cases like these, where there is no other way to stabilize the woman's medical condition and prevent her from deteriorating, EMTALA's plain text requires that she be offered pregnancy termination as the necessary treatment.

Some state laws that protect unborn babies starting at conception include exceptions to preserve a major bodily function of the mother. Idaho is one of several pro-life states that doesn’t have this. And that’s a point of contention even among Idaho’s pro-life groups.

STEPHEN SCHMID: There’s not enough guidance with the law and I think that the doctors in the media who are complaining and saying that are right.

That’s Dr. Stephen Schmid. He’s a retired pro-life surgeon in Idaho. Last year, he brought together pro-life leaders to talk about adding health exception language to the law to prevent further backlash and even more permissive abortion legislation.

SCHMID: What it came down to in our final meeting in January, was that they were unwilling to proceed with any bill to change the language. Their reason or excuse was that we were waiting on this Supreme Court case, to see the outcome of the Supreme Court case.

Schmid says it’s hard to come up with conditions that threaten a bodily function or organ without putting the woman’s life at risk. He can only think of one: uterine infections that could prevent mothers from having future children.

In oral arguments, Turner for Idaho said Idaho law would not allow for an abortion in a case that threatens a woman’s bodily health but not her life.

TURNER: And Idaho, like 22 other states, and even Congress in EMTALA recognizes that there are two patients to consider in those circumstances. And the two-patient scenario is -- is tough when you have these competing interests.

As Turner noted, even EMTALA requires hospitals to care for the health of unborn children. Justice Samuel Alito brought this up while questioning U.S. Solicitor General Prelogar.

JUSTICE ALITO: And 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.

Justice Alito said EMTALA doesn’t tell hospitals how to deal with conflicts between the interests of mother and baby… but instead leaves that to state law. He and other conservative justices seemed concerned about the Biden administration’s argument that the government could require federally funded hospitals to break state laws that provide guidance in these conflicts. Here’s Justice Amy Coney Barrett.

JUSTICE BARRETT: It does seem odd that through a side agreement between a private entity and the federal government, the private entity can get out of state law.

Dr. Schmid says the conflicting interests between mother and child in rare health cases raise difficult questions. In particular, when risks to the mom’s health are greater than the possibility of the baby’s survival, what should the laws require of mothers in a secular society?

SCHMID: As I said, I think the crux of the matter comes down to whether or not … we want to accept … a woman’s organ damage… and trade that for a baby's life.

To many pro-lifers and to the state of Idaho, the baby’s life is more important.

Idaho will find out if it can preserve that priority when the Supreme Court issues a decision in the case, expected this summer.

Reporting for WORLD, I’m Leah Savas.

WORLD Radio transcripts are created on a rush deadline. 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 WORLD Radio programming is the audio record.