Supreme Court justices appear split over whether to protect abortion care during emergencies

Protesters gather outside the U.S. Supreme Court on Wednesday, April 24, 2024, while justices hear oral arguments about whether federal law protects emergency abortion care. (Sofia Resnick/States Newsroom)

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U.S. Supreme Court justices spent two hours Wednesday debating whether a federal law about emergency treatment encompasses abortion care even in states with strict abortion bans, with no clear indication of how they may ultimately rule.

A decision could come as soon as the end of June to decide whether Idaho’s near-total abortion ban means doctors who might need to terminate a pregnancy during a health emergency would be protected from prosecution under the Emergency Medical Treatment and Labor Act, or EMTALA, a federal law that requires hospitals to treat patients who come to an emergency room regardless of their ability to pay.

If the court decides it does not provide that protection, then hospitals and doctors in Idaho have said they will have to continue transferring patients out of state for that treatment. Since January, when the court decided to take the case and struck down an injunction that provided protection under EMTALA, the number of transfers out of state for pregnancy complications that may require termination has increased from one in 2023 to six over the course of four months.

The arguments began with aggressive questioning of Idaho Deputy Attorney General Josh Turner by the court’s more liberal justices, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Their questions revolved around what EMTALA, which was signed into law in 1986 by President Ronald Reagan, explicitly says about stabilizing treatment and whether abortion procedures fall into that definition when complications occur before a fetus can survive outside of the womb, even with medical intervention.

Turner argued that Idaho’s law should supersede federal law in the case of abortion procedures because if a treatment isn’t available based on a state law, then it is in conflict with EMTALA and the federal law doesn’t apply, even if it goes against commonly accepted medical care standards.

Sotomayor rejected that argument.

“There is no state licensing law that would permit the state to say, ‘Don’t treat diabetics with insulin. Treat them only with pills,’” Sotomayor said. “Federal law would say you can’t do that.”

She said federal law requires treatment of a person who is at risk of serious medical complications without that treatment, but Idaho’s law does not provide that much leeway.

“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, counsel,” she said.

Idaho’s abortion ban went into effect in August 2022, a few months after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade, ending federal protection for abortion access and allowing states to regulate it instead. Providers who are prosecuted for performing an abortion are subject to two to five years in prison plus the loss of their medical license, and they are also subject to civil enforcement laws by any family members related to the person who had the abortion.

Conscience objections, expansion of ‘emergency’ definition

The more conservative justices offered mixed questions to U.S. Solicitor General Elizabeth Prelogar, who argued on behalf of the government. Justice Neil Gorsuch posed questions related to the federal Supremacy Clause about when federal law can override state law in the context of medicine, while Justice Amy Coney Barrett asked about whether conscience exceptions exist for doctors who don’t feel comfortable terminating a pregnancy even in emergency situations. Or if a hospital in general did not want to provide the procedure, such as a Catholic hospital, would be exempt under EMTALA for conscience reasons. One of Idaho’s largest hospital systems, Saint Alphonsus, is a Catholic hospital.

Prelogar confirmed that yes, individual doctors and entire medical entities qualify for those conscience objections and are therefore not required to perform an abortion under EMTALA. But at a hospital that did not have a blanket objection, they would take individual objections into consideration for appropriate staffing so that there is always someone available to provide that care if necessary.

“If the question is, could you force an individual doctor to step in over a conscience objection, the answer is no, and I want to be really clear about that,” Prelogar said.

Justice Sam Alito also asked Prelogar if EMTALA could be understood to apply to other emergency situations such as a mental health emergency, if someone was expressing suicidal thoughts and wanted to end their pregnancy to resolve those thoughts. Idaho’s legal representation, conservative religious law firm Alliance Defending Freedom, argued in its brief to the court that a ruling in favor of EMTALA protection would allow such situations to occur. Prelogar said no, the proper treatment would be to administer medications to alleviate the suicidal thoughts.

“There can be grave mental health emergencies, but EMTALA could never require pregnancy termination as the stabilizing care … because that wouldn’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place,” Prelogar said. “If she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. She might not be in a position to give any informed consent.”

The court is expected to rule in the case by the close of its current term, which typically occurs toward the end of June.

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