Supreme Court wrestles with fallout of Dobbs in arguments on emergency abortions

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The Supreme Court heard nearly two hours of heated arguments Wednesday on the tension between Idaho’s near-total abortion ban and a federal law requiring hospitals to offer any treatment — including an abortion — needed to stabilize patients in an emergency.

It’s the first time the high court has scrutinized an individual state’s abortion ban since the justices overturned Roe v. Wade in 2022, and the justices were repeatedly confronted with the consequences of that decision — including stories of pregnant patients in Idaho being airlifted to other states.

A few conservative justices at times joined the court’s liberal wing Wednesday in asking tough questions that picked apart Idaho’s argument that its hospitals should not be bound to provide abortions under the federal law at issue, known as the Emergency Medical Treatment and Labor Act, or EMTALA.

But it was far from clear whether those conservatives — most notably Chief Justice John Roberts and Justice Amy Coney Barrett — were prepared to vote with the three liberals against Idaho. And several members of the court’s six-justice conservative majority expressed deep skepticism of the federal government’s power to impose limits on how states can regulate health care, including abortion. Multiple conservative justices also criticized the Biden administration’s argument that Congress intended to override state laws when it passed the federal measure in 1986.

Security was extra tight at the high court Wednesday, and the justices had far shorter fuses than they did during last month’s arguments over the FDA’s regulation of the widely used abortion pill mifepristone. Some justices aggressively sparred with the attorneys for both sides and even with one another. Others voiced confusion and frustration over why the Idaho case was before them in the first place.

Decisions in both the Idaho case and the mifepristone case are expected by the end of June — just a few months before a presidential election in which abortion is expected to play a major role.

Here are six takeaways from the arguments:

Both sides warn of a slippery slope

Attorneys for both sides argued Wednesday that a win for their opponent would risk a cascade of unintended and dangerous consequences. Joshua Turner, Idaho’s chief of constitutional litigation and policy, warned the justices that if they hold that EMTALA requires hospitals to provide emergency abortions that are otherwise prohibited by state law, it will open to the door to the federal government forcing other treatments that violate state law, including “opioid use and informed consent requirements.”

Turner also argued that the Biden administration’s overbroad definition of emergency abortions that would include patients experiencing a mental health crisis.

“I don’t know how, if a woman presents at seven months pregnant in an Idaho emergency room and says, ‘I'm experiencing severe depression from this pregnancy, I'm having suicidal ideation from carrying this pregnancy’ that that wouldn't, under the administration's reading, be the only stabilizing care,” he said.

Arguing for the Biden administration, Solicitor General Elizabeth Prelogar flatly rejected the claim, saying that abortion is never the recommended standard of care in that circumstance because it “wouldn't do anything to address the underlying brain chemistry issue that's causing the mental health emergency in the first place.” Offering an abortion to a pregnant woman experiencing a psychotic episode or suicidal ideation, she added, “would be incredibly unethical,” would violate the standard of informed consent — and would never be required under the federal government’s interpretation of EMTALA.

Prelogar then painted her own picture of the consequences of a win for Idaho, warning that allowing the state to carve abortion out of the treatments required under EMTALA would open the door to hospitals flouting other federal laws, like the prohibition against turning away patients who can’t afford to pay.

“This effectively allows states to take any particular treatment they don't want their hospitals to provide and dump those patients out of state,” she said. “You can imagine what would happen if every state started to take this approach.”

Post-Dobbs horror stories replace hypotheticals

Hypotheticals have long been a hallmark of Supreme Court arguments, but Wednesday’s case featured far more real-world stories of pregnant women whose health suffered after they were denied a medically needed abortion in Idaho and other red states since the court overturned Roe.

When Turner tried to argue that there is no conflict between Idaho’s abortion ban and EMTALA because both allow doctors to provide abortions in life-or-death situations, Justices Sonia Sotomayor and Elena Kagan cited several examples from briefs to the court of cases in which pregnant women experiencing sepsis, hemorrhage and other serious conditions were refused abortion care in states with bans.

“These are hypotheticals that are true,” stressed Sotomayor.

Prelogar, along with multiple justices, also pushed back on Turner’s arguments by citing the spike in Idaho hospitals airlifting pregnant patients across state lines.

“One hospital system in Idaho says that, right now, it's having to transfer pregnant women in medical crises out of the state about once every other week,” the solicitor general said. “That's untenable.”

These stories appeared to move even some of the court’s conservatives.

“You've touched on what's happening on the ground, and that's an important consideration,” said Justice Brett Kavanaugh, who spoke only a few times during Wednesday’s arguments. Kavanaugh, along with Roberts and Barrett, likely will be a pivotal vote in the case.

An unusually prickly court

The justices seemed at their most tense and testy at any public event since they overturned the federal constitutional right to abortion almost two years ago. The liberal justices dominated the first 20 minutes or so of arguments, sometimes interrupting each other as they peppered Turner with questions and demanded he speak to various specific cases of women denied emergency abortions. That prompted three conservative justices to openly complain that the lawyer for Idaho wasn’t being allowed to respond.

“Could I hear your answer?” Roberts interjected at one point, cutting Sotomayor short.

Justices Samuel Alito and Neil Gorsuch also griped about the liberals’ rapid-fire questioning, with Alito — the author of the 2022 Dobbs decision overturning Roe — sometimes leaning far back in his chair and appearing irritated.

Kagan launched a rocket at Turner after he said EMTALA reflected a “humble” approach by Congress that left intact states’ authority to regulate medical treatment.

“It may be too humble for women’s health,” she retorted.

Two or three conservative justices seem in play

All eyes in the courtroom seemed riveted on Barrett when she interjected the first question from the court’s right flank into the liberals’ fusillade. She said she was taken aback by what she viewed as a retreat from assurances Idaho had given lower courts that doctors wouldn’t be prosecuted for performing abortions to treat a range of conditions that can lead to serious health consequences.

“I’m kind of shocked, actually, because I thought your own expert said below that these kinds of cases were covered” by the exception for conditions that could cause death, she said. “And now you’re saying they’re not.”

“No, I’m not saying that,” Turner replied.

“Well, you’re hedging,” Barrett shot back, pointing out that even if the Idaho attorney general’s office felt a situation didn’t merit prosecution, a local district attorney might file charges against a doctor anyway.

“That, your honor, is the nature of prosecutorial discretion,” Turner replied, which seemed to leave Barrett less than fully satisfied.

Roberts and Kavanaugh also seemed to struggle with some of the state’s arguments. Kavanuagh, in particular, appeared eager to narrow the dispute by moving away from hypotheticals and trying to nail down whether Idaho and the federal government actually disagree about the sorts of cases or conditions where an abortion should be available.

Justices question whether a Medicare spending requirement can override state law

Some conservative justices appeared to question whether there is any legal conflict at the core of the case.

Gorsuch noted that the federal government has the power to sanction hospitals that don’t provide all forms of emergency care required by federal law and can even cut those hospitals off from the Medicare program.

But Prelogar said Idaho is seeking an affirmative declaration that its abortion ban can be enforced without any such consequences for its hospitals.

“What it wants is for its hospitals to be able to accept Medicare funding, but not have to face the restrictions that are attached. … That's an essential part of the bargain and there is no precedent to support that outcome,” she said.

Turner did appear to argue that his state and others have the right to set their own medical standards, even if they conflict with federal protections.

“What I dispute is that there's a national, uniform standard of care that requires a top-down approach,” he said. “Idaho has set its own standard of care.”

For his part, Gorsuch said he remained baffled by the idea that the Justice Department can sue Idaho to override a state law and cite a federal law that essentially rides-along as a condition of taking federal dollars. “I don’t understand how the theory works,” he said.

Justice Clarence Thomas echoed Gorsuch, asking Prelogar: “Are you aware of any other spending clause legislation that preempts criminal law?”

Alito raises fetal personhood arguments

Some conservative justices, led by Alito, pressed the attorneys arguing the case on EMTALA’s language mandating stabilizing treatment for both a pregnant person and her “unborn child” — a line of questioning that prompted progressive groups watching the case to warn that the justices may try to use the case to grant legal “personhood” rights to fetuses.

“Certainly you wouldn't dispute the fact that the hospital has a duty to the unborn child,” Alito said, asking if this conflicts with the Justice Department’s argument that EMTALA requires hospitals to offer abortions in some circumstances.

Prelogar countered that Alito’s was an “erroneous reading” of the law and that Congress added “unborn child” to EMTALA in order to expand protections for pregnant people, not reduce them.

“Congress wanted to be able to protect her in situations where she's suffering some kind of emergency and her own health isn't at risk, but the fetus might die,” she said. “Hospitals otherwise wouldn't have an obligation to treat her, and Congress wanted to fix that.”

On a call with reporters after the arguments, abortion rights advocates noted that Alito’s comments are part of a broader campaign on the right.

“They are pushing a legal strategy to give rights to embryos and fetuses that would override the rights of the pregnant person,” said Alexa Kolbi-Molinas with the American Civil Liberties Union. “Whether or not we see a decision in this case that discusses fetal personhood or recognizes these issues or excludes pregnant people from the protection of federal law, we know that is what these extremist anti-abortion politicians are pushing and they're not going to stop.”