Feds fight to override state pro-life law

Outside the U.S. Supreme Court on Wednesday morning, 15 women lay on the sidewalk under white sheets covered with fake blood. Behind them stood fellow protesters, one holding a sign that said, “Without EMTALA, Women in IDAHO will DIE.” Additional signs replaced Idaho with the names of other states that protect babies from abortion starting at conception—including Arkansas, Missouri, Indiana, Tennessee, and Texas.

According to Women’s March, the organization hosting the demonstration, the 15 women represented the 15 states where strong pro-life laws would put women at risk of death if the court rejects the Biden administration’s arguments in the case before the nine justices. In a lawsuit against the state of Idaho, the administration argues that a federal law known as the Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals to perform abortions if necessary to stabilize a sick or injured pregnant woman who arrives at an emergency room.

The court debated the question of whether this supposed federal requirement for abortion availability overrides Idaho’s pro-life law, which only allows abortions for medical reasons if the woman is at risk of death. Unlike some other pro-life state laws, it does not include an exception in cases of injury to a major bodily function. The justices worked to understand when and why state and federal law diverge regarding expected treatment for pregnancy complications and what a federal requirement for emergency abortions under EMTALA would entail. The debate highlighted the sensitive and complex nature of these rare but devastating pregnancy conditions—and the concerns that the Biden administration’s interpretation could lead to government overreach and abortion on demand.

Before launching into nearly an hour of rapid-fire questioning primarily from the court’s liberal justices, Idaho Deputy Solicitor General Joshua Turner, arguing in defense of Idaho’s pro-life law, outlined his primary concern with the government’s argument. If EMTALA means that emergency room doctors don’t have to follow state laws about abortion, Turner said, then a plethora of other state laws related to healthcare—including informed consent requirements and laws regulating opioid use—are also at risk. It “leaves emergency rooms unregulated under state law,” Turner said.

But during questioning, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson zeroed in on Idaho’s limited medical exception to its abortion law.

Turner acknowledged that there is a “controversy” between the treatment the administration says EMTALA requires and what Idaho’s pro-life law allows. But Sotomayor said it’s more than just a controversy. “What you’re saying to us is if EMTALA doesn’t have preemptive force . . . there is no federal law on the book that prohibits any state from saying, ‘Even if a woman will die, you can’t perform an abortion,’” she said.

Currently, all pro-life state laws include exceptions allowing for abortion to save a woman’s life. While some states define abortion as an act performed with the intent to kill the unborn child, Idaho law has a broader definition. It defines abortion as an act intended to end a pregnancy, knowing that the child is unlikely to survive. Even pro-life groups in the state affirm that the definition encompasses inducing labor when the baby is not yet viable.

Turner acknowledged that Idaho law allows for abortion as the standard of care to save a woman’s life—a risk, he clarified later, that does not need to be imminent. But when Kagan raised the question of risks to the woman’s health, Turner doubled down on Idaho’s approach. “Nobody is arguing that [these cases] don’t raise tough medical questions,” he said. “Even Congress in EMTALA recognizes that there are two patients to consider in those circumstances.”

Sotomayor then peppered Turner with real-life examples of women whose water broke before their babies were viable, asking if an abortion in these circumstances would fit within Idaho’s exception because of the risk the woman faced of developing a severe infection. In the few words he could fit in between her interruptions, Turner clarified that Idaho law doesn’t require doctors to wait to act until they know with medical certainty that a woman will die but only to determine that under the lower standard of their good faith medical judgment.

Justice Samuel Alito eventually jumped in. “You have been presented here today with very quick summaries of cases and asked to provide a snap judgment about what would be appropriate in those particular cases,” he said, adding that Turner barely had an opportunity to respond to some of the hypotheticals. He noted that even a medical doctor given similar scenarios would hardly be able to say what he would do in those situations. “The doctor would say, ‘Wait, this is not how I practice medicine. I need to know a lot more about the individual case,’” Alito said.

In response, Turner noted that even the pro-abortion American College of Obstetricians and Gynecologists doesn’t automatically recommend abortion in cases when a woman’s water breaks early. Oftentimes, closely monitoring the woman to allow the baby to continue growing in utero is the appropriate approach. He later mentioned his concern that allowing for abortions under the Biden administration’s interpretation of EMTALA would open the door to abortions for broad mental health reasons since the American Psychiatric Association asserted abortions are essential for treating such conditions.

In her opening arguments, U.S. Solicitor General Elizabeth Prelogar claimed the state of Idaho was trying to make the case about abortions for unwanted pregnancies instead of the narrow medical circumstances that put some Idaho doctors in a conundrum. “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,” she said, citing one hospital system in the state that says it now has to transfer pregnant women in medical crises out of the state every other week.

This is happening, Prelogar said, because doctors are concerned by the text of the statute and fear they’ll face major legal repercussions for acting too soon in a medical emergency. “As a matter of medical reality, for many of these conditions, it’s not yet putting a woman at the brink of death or necessary to prevent her death,” she said. “Yet [the doctors] know that the standard of care is to provide her with termination because she is just going to get worse and worse and worse if they wait it out.”

Some of the conservative justices’ questions for Prelogar focused on the issue of federal overreach. Justice Neil Gorsuch asked if the federal government can force hospitals to ignore state laws, and Prelogar said it can. “There might be a point at which this court thinks that it’s really encroaching on the state’s prerogatives in ways that are inconsistent with our constitutional structure, but I don’t think we’re anywhere close to that,” she added.

Responding to other questions about the scope of the abortion requirement under EMTALA, Prelogar clarified that the administration’s interpretation of the law would mandate abortion only when there is no other way to stabilize the woman’s condition. She added that the federal government is not arguing for abortions in mental health cases. “That wouldn’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place,” she said.

But in his rebuttal, Turner disagreed that this interpretation would remain limited to physical health, noting that Prelogar’s response just pitted her against the American Psychiatric Association, the organization that establishes a national standard of care in this field of practice.

Turner also issued a warning: if the federal government is allowed to override this Idaho law, the government’s reach won’t end with this case. “There are 22 states with abortion laws on the books,” he said. “All of the states that have abortion regulations define the health and the emergency exception narrower than EMTALA does. So this question is going to come up in state after state after state.”