Republican- and Democratic-appointed members of the Supreme Court on Wednesday appeared sharply divided regarding whether Idaho’s near-total prohibition of abortions conflicts with federal emergency medicine statutes.
The oral arguments focused on whether Idaho’s near-total abortion ban, which only prohibits abortion in cases of rape, incest, or to prevent the death of the mother, is too narrow to cover emergency conditions in which a woman may not be in immediate danger of her life.
Arguing on behalf of the Department of Health and Human Services, Solicitor General Elizabeth Prelogar argued that the requirement that a woman be on the verge of death prior to receiving an emergency abortion violates the Emergency Medical Treatment and Active Labor Act, which requires hospitals to provide “necessary stabilizing treatment” in cases of emergencies.
The case came before the Supreme Court following Idaho’s appeal of an injunction placed on the state’s anti-abortion statute from the U.S. Court of Appeals for the 9th Circuit. When the Supreme Court agreed to hear Idaho’s case in January, it overrode the lower body’s injunction, allowing the state’s abortion ban to take effect until a final decision is made in June.
Prelogar argued that in cases with life-threatening complications that are likely but not immediately present, such as severe pre-eclampsia or premature rupture of membranes, physicians should be able to treat the condition by aborting the fetus.
“In cases like these where there is no other way to stabilize the woman’s medical condition and prevent her from deteriorating,” Prelogar said. “EMTALA’s plain text requires that she be offered pregnancy termination as the necessary treatment. And that’s how this law has been understood and applied for decades.”
Josh Turner, representing the state of Idaho as the chief of constitutional litigation, argued that in these extreme circumstances, the physician must make the determination in his or her “good faith medical judgment” as to whether the abortion would be necessary to prevent eventual death from serious complications.
Justice Sonia Sotomayor pressed Turner on this matter, listing several hypothetical examples of where this could prove difficult.
“If objective medical care requires you to treat women who present the potential of serious medical complications, and the abortion is the only thing that can prevent that, you have to do it” under EMTALA, Sotomayor said. “Idaho law says the doctor has to determine not that there’s really a serious medical condition but that the person will die. That’s a huge difference.”
Justice Elena Kagan also took issue with the stabilization question, saying that physicians “don’t have to wait until the person is on the verge of death.”
“If the woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient,” Kagan said.
Turner responded, saying Idaho law does not require such a delay, arguing, “There is no imminency requirement. There is no medical certainty requirement.”
Unborn Child
Near the closing of oral arguments, Justice Samuel Alito highlighted that the statutory text of EMTALA references the phrase “unborn child” four times, referring to the fetus as an independent patient also worthy of stabilization.
This language comes from the context in which EMTALA was passed in 1986, when pregnant women in labor but without insurance coverage were denied treatment upon presenting at the hospital.
“Have you ever seen an abortion statute that uses the phrase ‘unborn child’?” Alito asked Prelogar, referring to the administration’s argument that EMTALA mandates the provision of abortion.
Prelogar responded by saying the congressional intent in drafting EMTALA was to require hospitals to stabilize the patient that is most at risk of severe complications, mother or child.
“It tells us that Congress wanted to expand the protection for pregnant women so that they could get the same duties to screen and stabilize when they have a condition that’s threatening the health and wellbeing of the unborn child,” Prelogar answered. “The statute did nothing to displace the woman herself as an individual with an emergency medical condition.”
Prelogar highlighted that there are certain cases in which “there is no possible way to stabilize the unborn child because the fetus is sufficiently before viability.”
Standards of medical care
The central matter that came up in the arguments is whether the standards of medical care in emergency pregnancy situations are determined by federal laws governing emergency medicine practice or whether states can establish their own standards of care under their authority as medical licensing bodies.
Turner argued that, because states have had traditional jurisdiction over licensing medical practice, the states are within their authority to establish legal boundaries around standards of medical care. He said the administration’s interpretation of EMTALA “lacks any limiting principle.”
“If ER doctors can perform whatever treatment they determine is appropriate, then doctors can ignore not only state abortion laws but also state regulations on opioid use and informed consent requirements,” Turner said.
Turner argues that “the standard of care is necessarily set and determined by the state.”
Kagan argued that although EMTALA is a short document that does not list all possible modes of action to respond to medical emergencies, the statute implicitly refers to “an objective standard” set by the medical community at large.
“It’s a standard that clearly has reference to accepted medical practice — not just whatever one doctor happens to think,” Kagan said.
Election year implications
The Supreme Court’s impending decision in the case could have significant implications for the 2024 elections, in which abortion is a leading concern among a sizable majority of voters.
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In addition to Idaho’s law, the decision could jeopardize the laws of 22 other states that have prohibited abortion after a certain gestational age following the court’s overturning of federal protections for abortion under Roe v. Wade.
Prelogar said there are six other states with abortion restrictions with the exception of preventing death rather than to save the life and health of the mother, and these are the states with which the Biden administration is most concerned.
