The Supreme Court heard oral arguments last week concerning whether or not federal law can be understood as requiring doctors to perform abortions in a wide range of emergency circumstances regardless of what may be permitted by state law.
At the center of this case is the Emergency Medical Treatment and Labor Act (EMTALA), which requires the provision of stabilizing medical care to patients whose health is in “serious jeopardy” or when there is the risk of “serious impairment to bodily functions, or serious dysfunction of bodily organs,” regardless of insurance coverage or a patient’s ability to pay.
Justices are now being asked to decide if the requirements outlined in EMTALA preempt existing state law allowing for abortions to be performed only when the life of the mother is in jeopardy.
Based on the questions asked during last Wednesday’s oral arguments, the Justices appear to be sharply divided over whether or not Idaho state law is in violation of EMTALA’s requirements in so far as it prohibits abortions except when necessary to save the mother’s life.
Idaho Constitutional Litigation and Policy Chief Josh Turner argued that there is nothing in EMTALA that requires doctors to offer treatment in violation of state law, pointing out that the requirement to provide stabilizing care is subject to availability.
According to Turner’s interpretation of this language, the availability of treatment hinges not just on the physical capability of a hospital to provide it, but also on its legal capability to do so.
In making this argument, Turner referenced a case heard by the Court last month concerning homelessness wherein the availability of shelter was defined both in terms of physical and legal accessibility.
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Contrary to this, US Solicitor General Elizabeth Prelogar — arguing on behalf of the federal government — made the case that EMTALA requires that stabilizing care be provided in accordance with accepted medical standards, regardless of any state-level restrictions.
Prelogar’s argument effectively rests upon the idea that EMTALA’s premise and promise are “simple but profound,” guaranteeing that all patients, including pregnant women, receive the care necessary to preserve their health and life, regardless of any potential legal or financial barriers.
Chief Justice John Roberts asked Prelogar how federal conscience protections — which allow health care providers to abstain from performing certain procedures based on religious or moral objections — interact with her understanding of EMTALA’s requirements.
In response, Prelogar suggested that both hospital facilities and individual doctors would still be able to assert conscious protections, but — absent a facility-level objection — hospitals would need to ensure that staff is available to perform emergency abortions in order to remain in compliance with federal requirements.
Another critical point of contention that emerged during oral arguments was with respect to whether Idaho’s law would — in practice — prohibit doctors from performing an abortion in a range of specific emergency circumstances described by the federal government in their briefs to the Court.
Turner argued that, despite what it says on paper, Idaho’s law would not, in reality, prevent a doctor from providing an abortion in these situations. Prelogar, however, pushed back, taking issue with the suggestion that the state’s law could possibly be deemed compliant with EMTALA’s requirements.
Several members of the Court — including Justice Ketanji Brown Jackson and Justice Elena Kagan — pressed Turner on this point, proffering a variety of scenarios in which a woman may face serious, lifelong complications as a result of her pregnancy but not be at risk of death.
Turner, in response, said these situations would be “very difficult” and raise “tough medical questions.” Justice Kagan appeared dissatisfied with this answer, however, suggesting that EMTALA has already provided the necessary guidance for these situations.
Although Turner argued that doctors in Idaho have the freedom to exercise their best medical judgment concerning whether or not a woman’s condition could result in death if an abortion is not provided, Justice Amy Coney Barrett raised concerns that prosecutors could bring in competing medical authorities to challenge these decisions after the fact in court.
Turner, in response, said that this is “the nature of prosecutorial discretion.”
According to Prelogar, Idaho’s abortion restrictions are contrary to the principles of EMTALA — both on paper and in practice — because they require doctors to set aside any complications except death, whereas EMTALA demands that an abortion be provided if there is a threat of serious injury, such as fertility loss or organ damage.
Justice Samuel Alito asked Prelogar about EMTALA’s inclusion of protections for “unborn children,” positing that it would typically be unheard of to find such language in a law that otherwise functions to mandate abortions.
In response, Prelogar said that this clause was included to help ensure that hospitals would be required to provide stabilizing care to unborn children experiencing medical emergencies that do not impact their mothers’ health.
According to Prelogar, it did not serve to “displace” any protections that would otherwise be afforded to the mother.
Alito pushed back on this point, suggesting that EMTALA imposes a duty upon hospitals to protect both the mother and unborn child but does not provide guidance as to how it should be adjudicated if the interests of these individuals are in conflict.
Prelogar argued, however, that the duty imposed by EMTALA is to stabilize whomever is in distress at a given time.
Questions regarding whether or not the federal government’s interpretation of EMTALA would require hospitals to provide abortions as a form of “stabilizing care” for women suffering from mental health emergencies were also featured during the nearly two hours worth of hour arguments.
While Prelogar was adamant that the government’s interpretation of EMTALA would not mandate hospitals to provide abortions in these situations — going so far as to say that it would be “incredibly unethical” to do so, as the mother would likely be unable to provide informed consent — Turner insisted that this would not be the case.
Because the American Psychiatric Association has recommended abortions as the standard of care for women experiencing certain mental health emergencies, Turner argued, the government’s definition of “stabilizing care” would necessarily encompass these situations as well.
Toward the end of the argument session, Justice Barrett asked Prelogar how the government’s theory of the case would operate under a different set of circumstances — such as if the federal government had declared that abortions or gender reassignment surgeries could not be performed — questioning if this would then tie the hands of medical providers despite existing state laws requiring that such procedures be made available.
In response, Prelogar acknowledged that “Congress has broad power” to impose such conditions, but did not necessarily speak with any detail to the particular implications Barrett posited.
Click Here to Listen to the Oral Arguments
Earlier this year, the Supreme Court heard oral arguments in another abortion-related case, this one concerning the Food and Drug Administration’s (FDA) recently loosened restrictions on the administration of mifepristone, a drug used in medication-induced abortions.
This was the first time that the Court has heard an abortion-related case since overturning Roe v. Wade in 2022.
[RELATED: SCOTUS Hears Oral Arguments in First Abortion-Related Case Since Overturning Roe v. Wade]
As of now, it is not clear when the Justices will release their opinion for the case heard this past Wednesday, but all opinions are typically handed down before the Court recesses for the summer.
According to the Supreme Court’s website, unanimous decisions are typically released quickly, while those that generate a number of dissenting and concurring opinions may not be released until the last day of the term.
Click Here to Read a Transcript of the Oral Arguments
