Dem
51
GOP
49
Even more action from the Supremes? Yup. The six conservatives who voted to overturn Roe v. Wade seemed to think that, like the wisdom of Solomon, their decision had settled the abortion issue for all time. Feel free to laugh merrily at that presumption, since the Dobbs decision has served to cue up many and varied legal controversies, some of which will, or already have, ended up on the Supreme Court's docket.
Yesterday, the Court heard oral arguments in one of the first of those cases, involving the near-total ban on abortion imposed by the state of Idaho. Speaking narrowly, the question before the Court is whether denying abortion access to women with a medical emergency is a violation of federal law. Speaking broadly, the question is whether the Court is willing to get involved in carving out exceptions to state abortion laws.
Lawyer-reader A.R. in Los Angeles listened to the arguments, and agreed to send in a report:
Under the Emergency Medical Treatment and Labor Act (EMTALA), Medicare participants, such as hospitals, must provide stabilizing treatment to any patient with an emergency condition that seriously threatens the patient's life or health. This law was enacted so that hospitals could not discriminate in the provision of emergency care and "dump" uninsured patients to other ERs or deny care altogether. In some circumstances, pregnant women arrive at the ER with an emergency condition where the only option to provide stabilizing treatment is an abortion. Prior to Dobbs overturning Roe v. Wade, states could not prohibit abortion, so states could not pass laws that conflict with this federal statute. Since Dobbs, however, several states, including Idaho, have passed laws prohibiting abortion even under the circumstances as outlined by EMTALA. Idaho, for example, prohibits doctors from providing abortion care unless the abortion is "necessary to prevent the death of the pregnant woman." As a result, doctors in those states are turning women away or requiring them to be sicker and closer to imminent death before they will provide abortion care in the ER.
The U.S. brought this case alleging that Idaho's law (and by extension, others like it) is preempted by EMTALA to the extent that it prohibits the emergency care that EMTALA requires. The lower court agreed and issued an injunction, which was upheld by the Ninth Circuit sitting en banc, but in January 2024, SCOTUS stayed that injunction and granted cert.
At oral argument, the solicitor general, Elizabeth Prelogar, was careful to note that Idaho's law would remain in full force and effect, except in those narrow circumstances where it conflicts with EMTALA. By contrast, Idaho contended that the U.S.'s reading of EMTALA amounts to an "abortion mandate" and interferes with the states' ability to regulate abortion as set out in Dobbs. Prelogar was trying to give the justices a way to issue a narrow ruling that does not tread too heavily on state law. But it seemed like an uphill climb.
As usual, Associate Justices Clarence Thomas and Samuel Alito demonstrated that they had no interest in hearing about the practical realities of a woman being required to bleed out in a parking lot before she could receive abortion care. Thomas seemed to think that the U.S. could not bring this case against Idaho since the regulated entity was a hospital and the U.S.'s only recourse was against the hospital. Alito agreed, of course, and also latched onto a phrase in EMTALA that recognizes that treatment may be required for a woman's "unborn child," claiming that conflicted with the idea that an abortion can sometimes be required to ensure that the woman's condition does not "materially deteriorate." Prelogar explained that this section means that hospitals are obligated to treat pregnant women even if they themselves are not in danger but the fetus is. None of the other justices picked up either of these lines of questioning. Gorsuch also seemed to side with Idaho but on the basis that there was no actual conflict since the state law left abortion decisions to the "good faith" judgment of the doctors and "imminent" death isn't required.
Associate Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson questioned Idaho's attorney, Joshua Turner, about his evolving argument that there is no actual conflict between the two statutes. Under Kagan's expert questioning, Turner agreed that an abortion is the standard of care for certain conditions. Kagan went on to explain that under EMTALA, those conditions can be related to health, and not just life-threatening conditions as ID law requires.
The wild cards here are Chief Justice John Roberts and Associate Justices Brett Kavanaugh and Amy Coney Barrett. Roberts was trying to convince himself that the doctors are not really risking their license if they provide care consistent with EMTALA's requirements because under ID law it's a subjective standard and ID law does not prohibit compliance with EMTALA. But again, he ignored the realities on the ground in Idaho that just this year, 6 pregnant woman were transferred out of the state because hospitals refused to provide the care needed to stabilize their conditions for fear they would violate Idaho law.
Justice Barrett is a bit of a mystery. As in the mifepristone case, she focused on the conscience objection and whether that applied to EMTALA. Prelogar assured her that it does. She also seemed confused by Turner's argument that there is no conflict since Idaho only allows abortion care when necessary to prevent death, not to prevent material deterioration as required by EMTALA. She also asked about the interaction with the Hyde amendment that prohibits federal funding for abortion. Prelogar explained that ER services are required even if there is no federal funding available. I got the sense that Barrett understood the predicament that doctors are in and was looking for a way to reconcile the serious medical conditions that jeopardize a pregnant woman's health, including her ability to have future children, that may require an abortion but that don't put her life at risk, with a doctor's ability to opt out of that treatment for moral or religious reasons.
Justice Kavanaugh also seemed to struggle with the conflict question. He pointed to the Idaho Supreme Court's decision that clarified the Idaho law to say that "good faith" is a subjective standard and that also set out some specific conditions that would justify an abortion, such as an ectopic pregnancy. He kept asking for examples of the "daylight" between the two statutes. It was unclear if he would find preemption if he found some "daylight."
Based on the argument, it's hard to know which way the fifth vote will go. I could see Barrett agreeing with the other women that the Supremacy Clause applies and preempts Idaho law only to the extent that it conflicts with EMTALA. I can also see Kavanaugh getting there if they can convince him that the conflicts are unavoidable. Roberts seems likely to side with Thomas, Alito and Gorsuch.
Having listened to the oral arguments in each of the abortion cases, it is interesting to see the women echoing each other as they grapple with the real-world effects of their decisions. Sotomayor gave vivid examples of the dire consequences to women of these draconian state laws. Barrett, too, seemed very troubled that women who very much wanted their children could not get the care they needed for pregnancy complications. The men, on the other hand, were completely unmoved and even dismissive of women's experiences, as if they had no relevance to their decision. It was fairly chilling to hear.
Chilling, indeed. Thanks for the report, A.R. (Z)