The abortion case before the Supreme Court on Wednesday featured heated questions and comments, particularly from the three liberal justices. At issue is whether Idaho’s near-total abortion ban is so strict that it violates a federal law that requires emergency care for every patient, including providing abortions to pregnant women in dire situations.
A decision could reverberate beyond Idaho, to at least a half-dozen other states that have similarly restrictive bans.
The implications of the case could also extend beyond abortion, including whether states can legally restrict other types of emergency medical care and whether federal law opens the door to fetal personhood claims.
Here are some conclusions:
The case centers on whether Idaho’s abortion ban violates federal law.
Idaho’s ban allows abortion to save a pregnant woman’s life, but not to prevent her health from deteriorating. The federal government says that therefore violates the Emergency Medical Care and Employment Act, or EMTALA, which was enacted nearly 40 years ago.
EMTALA says that when a patient goes into a medical emergency, hospitals must either provide treatment to stabilize the patient or transfer the patient to a medical facility that can, regardless of the patient’s ability to pay. It says that if a state law conflicts with federal law, the federal law takes precedence.
An attorney representing Idaho, Joshua Turner, told the Supreme Court that the state does not believe the abortion ban conflicts with federal law. He said the ban allows emergency departments to perform abortions if a pregnant woman has a medical problem that is likely to lead to her death, not just if she is facing imminent death.
The three liberal justices strongly disagreed with Mr. Turner’s interpretation and pointed to situations in which women in critical situations would be denied abortions under Idaho’s ban. When Justice Sonia Sotomayor asked whether the ban would prevent an abortion in a situation where a woman would otherwise lose an organ or suffer serious medical complications, Mr. Turner acknowledged that it would. “Yes, Idaho law says that abortions in this situation are not allowed,” he said.
The real-world consequences of Idaho’s ban on abortion and other medical care were evident.
Attorney General Elizabeth B. Prelogar, who represents the federal government, said Idaho’s abortion ban, which was allowed to take effect this year, had significant consequences for pregnant women and emergency room doctors.
“Today, doctors in Idaho and women in Idaho are in a difficult position,” she said. “If a woman comes to an emergency room facing a serious health threat but is not yet facing death, doctors must either delay treatment and allow her condition to materially deteriorate or fly her out of state. can get the emergency care he needs.”
Justice Samuel A. Alito Jr., one of the more conservative justices, argued that the federal government and liberal justices were setting hypothetical examples. But Justice Elena Kagan, a liberal, noted that the hospital with the most advanced emergency services in Idaho has had to transfer six women to other states for emergency abortions so far this year.
There was also discussion about the potential consequences for other types of medical care if Idaho’s ban were allowed to stand. Justice Sotomayor said she would allow states to pass laws that say “don’t treat diabetics with insulin, just treat them with pills,” as opposed to the better medical judgment of a doctor who “looks at a young diabetic and says: ‘ Without insulin, “I’m going to get seriously ill.”
Conservative justices raised questions about the rights of the fetus.
Justice Alito, in particular, focused on the fact that EMTALA includes several references to the phrase “unborn child.”
“Doesn’t that tell us something?” asked. He suggested that it means that “the hospital must try to eliminate any immediate threat to the child” and that “carrying out an abortion is contrary to that duty”.
This has been an argument supporting attempts by abortion opponents to establish “fetal personhood” rights and declare that life begins at conception. Idaho attorney Mr. Turner said Wednesday that ”there are two patients that need to be considered” when pregnant women seek care in emergency rooms.
The federal government has pointed out that three of the four “unborn child” references in EMTALA refer only to when a woman in labor can be transferred to another hospital.
Ms Prelogar described the intent of the fourth reference to “unborn child”, which was later added to the Act. He said it refers to situations in which a pregnant woman goes to an emergency room and her pregnancy is at risk, but her own health is not currently at risk. In that case, the law would require hospitals to do everything they can to save the pregnancy. This would not be a situation where an abortion would be provided for, he said.
Ms. Prelogar also emphasized that usually in the types of pregnancy emergencies that typically require an abortion, there is no possibility of a live birth. “In many of these cases, the very complication of the pregnancy means that the fetus cannot survive independently,” he said. “There’s not going to be any way to keep this pregnancy going.”
In such cases, she said, “what Idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health consequences with no potential upside to the fetus. It piles tragedy upon tragedy.”
The US government has disputed conservative claims that federal law allows abortion for mental health emergencies.
Mr. Turner said EMTALA would allow emergency rooms to provide abortions to pregnant women experiencing depression and other mental health problems. Abortion opponents said this could be used as a loophole to allow many patients to get abortions despite state bans.
Judge Amy Coney Barrett, another conservative, expressed some skepticism about Idaho’s claim. Justice Alito pressed the solicitor general on this.
“Let me be very clear about our position,” Ms Prelogar replied. “This could never lead to a termination of pregnancy because that is not the accepted standard of practice for treating any mental health emergency.”
He said such patients would be given antipsychotic drugs and other psychiatric treatments. The cure would not be abortion, he said, because “that will do nothing to address the underlying issue of brain chemistry that is causing the mental health emergency in the first place.”
The federal emergency care law does not require doctors who are morally opposed to abortion to provide them, the administration said.
Justice Barrett and Chief Justice John G. Roberts Jr. asked whether EMTALA’s emergency medical care requirement prevented emergency department physicians or hospitals with moral or religious objections from choosing not to provide abortions.
The attorney general said federal protection of conscience takes precedence. So individual doctors can invoke conscience rights to avoid providing abortions, Ms. Prelogar said. And although he said it would be rare for an entire hospital to invoke a moral objection to terminating a pregnancy in the kinds of medical emergencies to which EMTALA applies, hospitals with such objections could also be exempt.