Supreme Court Appears Sharply Divided in Emergency Abortion Case

WASHINGTON — The Supreme Court appeared sharply divided Wednesday over whether federal law should allow doctors to perform emergency abortions in states with near-total bans on the procedure, in a case that could determine access to abortion in emergency rooms across the country.

The lively, two-hour argument focused on a clash between Idaho, whose law limits access to abortion unless the life of the pregnant woman is in danger, and federal law. Questioning by the justices suggested a divide along ideological — and possibly gender — lines.

“What Idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health consequences with no possible upside for the fetus,” said Solicitor General Elizabeth Prelogar, arguing on behalf of the federal government. “It just stacks tragedy upon tragedy.”

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Justice Elena Kagan interjected that the current situation seemed untenable: “It can’t be the right standard of care to force somebody onto a helicopter.”

Although the collision between the two laws affects only those women who face dire medical complications during pregnancy, a broad decision could have implications for more than a dozen states that have enacted near-total bans on abortion since the court overturned a constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization in June 2022.

The dispute was the second time in less than a month that the Supreme Court has grappled with abortion. It is a potent reminder that even after Justice Samuel Alito vowed in 2022 that the issue would return to elected representatives, it continues to make its way back to the court. In late March, the justices considered the availability of the abortion pill mifepristone.

The federal law at issue, the Emergency Medical Treatment and Labor Act, or EMTALA, enacted by Congress in 1986, mandates that hospitals receiving federal funds provide patients with stabilizing care.

Under Idaho’s near-total ban on abortion, the procedure is illegal except in cases of incest, rape, some instances of nonviable pregnancies or when it is “necessary to prevent the death of the pregnant woman.” Doctors who perform abortions could face criminal penalties, prison time and loss of their licenses to practice medicine.

The Biden administration maintains that the federal law conflicts with — and should override — Idaho’s. Lawyers for the state contend that the administration has improperly interpreted the federal law in a way that would bypass state bans.

Opponents of abortion assert that the Biden administration is trying to use the federal law to turn hospitals into legal abortion sites in states where the procedure is mostly banned.

Several of the conservative justices appeared skeptical of the federal government’s argument that the decades-old law aimed at preventing “patient dumping” — hospitals refusing to treat the poor and uninsured — should override Idaho’s abortion restrictions.

“How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare?” Alito asked.

The three liberal justices pushed back strongly on the lawyer arguing for Idaho, Joshua Turner, broaching several examples of pregnant women facing severe complications that could leave them unable to have children or with debilitating injuries. They also cited recent reports that, since Idaho’s ban went into effect, hospitals have flown several women to other states to receive emergency abortion care. Justice Amy Coney Barrett, a conservative, joined the tough questioning.

Justice Sonia Sotomayor appeared skeptical of Turner’s argument that the state’s law allows for doctors to make a good-faith determination about whether a patient’s life is in danger, describing a patient whose water broke early and required a hysterectomy and abortion.

“She can no longer have children,” Sotomayor said. “All right? You’re telling me the doctor there couldn’t have done the abortion earlier?”

“Again, it goes back to whether a doctor can in good-faith medical judgment —” Turner began.

“That’s a lot for the doctor to risk,” Sotomayor replied.

Barrett asked what would happen if a local prosecutor did not agree with a doctor’s judgment that an abortion was necessary.

When Turner answered that “it is very case by case,” Barrett joined in: “I’m kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered,” she said.

Even as Turner responded that such cases would be covered if a doctor acted in good faith, Barrett continued to probe.

“What if the prosecutor thought differently?” she asked. “What if the prosecutor thought, ‘Well, I don’t think any good-faith doctor could draw that conclusion.’”

“That, your honor, is the nature of prosecutorial discretion, and it may result in a case,” Turner said.

An extended exchange between Alito and Prelogar raised a broader question about whether some of the conservative justices may be prepared to embrace the language of fetal personhood, that is, the notion that a fetus would have the same rights as a pregnant woman.

Alito, who had relied on the language of fetal personhood in writing the court’s majority opinion in Dobbs, noted that “one potentially very important phrase” had not been mentioned — the federal law’s “reference to the woman’s quote, unquote, unborn child.”

“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” Alito asked. “Have you ever seen an abortion statute that uses the phrase ‘unborn child?’”

Prelogar responded that it made sense in terms of that federal law because it was an attempt to ensure that hospitals treated both a pregnant woman and the fetus in an emergency medical situation.

The Biden administration has relied on EMTALA as a narrow way to challenge state-level abortion bans.

After the court overturned a constitutional right to an abortion, near-total bans on the procedure swiftly took effect in some states, including in Idaho.

Once the Republican-controlled Legislature in the state passed the Defense of Life Act, which makes it a crime to perform or assist in performing an abortion, the Biden administration sued the state in August 2022, arguing that federal law should trump the state law when the two directly conflict.

The federal law specifies that a hospital must provide care to a person with an “emergency medical condition.” For pregnant women, the law states, that means when “the absence of immediate medical attention could reasonably be expected” to jeopardize “the health of the woman or her unborn child.”

If a hospital breaks the federal law, it can be sued and potentially lose Medicare funding. The federal law also includes a provision that it will not preempt a state or local law unless “the requirement directly conflicts with” it.

But the state law imposes a prison sentence of up to five years if it is violated and can lead to the loss of a doctor’s medical license.

A federal trial judge temporarily blocked the state’s ban. Last fall, a three-judge panel from the 9th U.S. Circuit Court of Appeals put the ruling on hold and reinstated the ban. But that decision was ultimately overridden by an 11-member panel of the appeals court, which temporarily blocked Idaho’s law as the appeal continued.

Outside the Supreme Court on Wednesday, demonstrators gathered at competing rallies.

Mylissa Farmer, 43, who said she was denied an abortion in Missouri and Kansas after her water broke at 17 weeks, spoke in support of the federal law’s protections.

“I just don’t want anyone else to go through what I did,” Farmer said. “That’s why I’m speaking out, because it’s so wrong, and I don’t see any kind of light.”

Just steps away, about a dozen anti-abortion demonstrators raised signs that read “Abortion betrays women” and “Emergency rooms are not abortion clinics.”

“What this law would do is it essentially make our hospitals and emergency rooms abortion clinics,” Bethany Janzen, 30, the founder of an anti-abortion group, said of the federal law. “And that’s a problem.”

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