Supreme Court Split Over Abortion in Medical Emergencies

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Supreme Court justices, wading back into the battle over abortion access, appeared divided on Wednesday in a case pitting Idaho’s strict Republican-backed abortion ban against a federal law that ensures that patients can receive emergency care.

The justices heard arguments in an appeal by Idaho officials of a lower court’s ruling that found that the 1986 law at issue, the Emergency Medical Treatment and Labor Act (EMTALA), supersedes the state’s near-total ban in the relatively rare circumstances when the two conflict.

President Joe Biden’s administration, which sued Idaho over the abortion law, has urged the justices to uphold that ruling.

The court has a 6-3 conservative majority. No consensus seemed to emerge among the conservative justices, who expressed concerns 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 said Congress used EMTALA to set a “baseline national standard of care” to ensure urgent conditions are addressed.

“Idaho’s ban on abortion is enforceable in virtually all of its applications,” Prelogar said. “But in the narrow circumstances involving grave medical emergencies, Idaho cannot criminalize the essential care that EMTALA requires.”

The case has led the Supreme Court to revisit the fraught legal landscape it created with its June 2022 decision overturning the 1973 Roe v. Wade ruling that had legalized abortion nationwide.

The liberal justices posed sharp questions to Joshua Turner, the lawyer for Idaho, who argued that EMTALA can only require emergency care that a state chooses to make available.

Liberal Justice Sonia Sotomayor told Turner his argument put “preemption on its head.”

“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,” Sotomayor said.

The administration has said that the termination of a pregnancy is the only care that would prevent grave harm to the health of some pregnant women facing emergency complications.

Idaho is one of seven states to put in place in the past two years a near-total abortion ban with no exception to protect the health of pregnant patients, according to a Justice Department filing.

Idaho’s so-called 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 that receive funding under the federal Medicare program to “stabilize” patients with emergency medical conditions. Hospitals that violate EMTALA can face lawsuits by injured patients, civil fines and potentially the loss of Medicare funding.

At 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.

Conservative Justice Samuel Alito told Prelogar that EMTALA also requires stabilizing care to be given to a woman’s “unborn child.”

“Performing an abortion is antithetical to that duty,” Alito added.

Prelogar said 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 pushed back against Idaho’s claim that doctors could comply with both the 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 Supreme Court in January let Idaho enforce its law while also agreeing to decide its legality.

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.

Turner told the justices that “nothing in EMTALA requires doctors to ignore the scope of their license and offer medical treatments that violate state law.”

Following Roe’s demise, the Biden administration issued federal guidance stating that EMTALA takes precedence over state abortion bans when the two conflict.

Turner argued that Idaho’s ban does not conflict with federal law because EMTALA does not require doctors to offer specific procedures such as abortion.

“We agree that EMTALA does impose a federal stabilization requirement,” Turner said. “But the question here is: what is the content of that stabilization requirement? And for that you have to reference state law.”

Liberal Justice Elena Kagan told Turner, “We can just take off the table this idea that, you know, just because it’s a state and it’s healthcare that the federal government has nothing to say about it. The federal government has plenty to say about it in this statute.”

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.”

Medical experts have said conditions that could threaten the woman’s life and health — from gestational hypertension to excessive bleeding — could require an abortion to stabilize her or avoid seizures, vital organ damage and failure, or the loss of the uterus.