Women on Supreme Court Consider Need for Life-Saving Abortions

Jeremy Childs
·3 min read
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The women on the Supreme Court appeared to band together Wednesday during oral arguments in a case out of Idaho that could shape how hospitals in Republican-led states respond to life-threatening pregnancy complications.

Even conservative Justice Amy Coney Barrett, a Catholic abortion opponent, had some fierce inquiries for Idaho Solicitor General Joshua Turner, who refused to specify what medical conditions qualify for emergency abortions.

“Counsel, I’m kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered. And you’re now saying they’re not?” Barrett said.

Wednesday’s case involves a ruling on the Emergency Medical Treatment and Active Labor Act, or EMTALA, a Reagan-era law that bars hospitals that accept Medicare from turning away anybody suffering from a medical emergency, requiring they provide stabilizing treatment or safe transport to a facility if they are unable to perform the procedure.

After the Supreme Court allowed states to ban abortion in 2022, the Biden administration issued guidance stating that states must still comply with EMTALA and allow hospitals to perform abortions necessary to stabilize a patient’s health. Idaho is attempting to overturn that federal guidance, arguing that EMTALA should not preempt the state’s near-total abortion ban. Idaho’s criminal abortion ban prohibits the procedure other than to specifically save a mother’s life.

During oral arguments, Justice Sonia Sotomayor read out a list of documented cases where women experienced major health emergencies in states with abortion bans and were denied abortions, and asked if they would have been denied care under the Idaho law.

Barrett attempted to get Turner to give straight answers to the questions, saying: “Well, you’re hedging. I mean, Justice Sotomayor is asking you, would this be covered or not, and it was my understanding that the legislature’s witnesses said that these would be covered.”

He replied that the Idaho legislature’s expert doctors had said abortions would be permitted under the law “if they were exercising their medical judgment, [and] they could in good faith determine that life-saving care was necessary.” He added that it’s “a subjective standard.”

“But some doctors might reach a contrary conclusion, I think is what Justice Sotomayor is asking you,” Barrett said, before pointedly asking: “What if the prosecutor thought, well, I don’t think any good-faith doctor could draw that conclusion, I’m going to put on my expert?”

Turner responded that this “is the nature of prosecutorial discretion.”

Justice Elena Kagan, meanwhile, asked why a woman had to be at “death’s door” to receive an emergency abortion under EMTALA.

“That understanding is a humble one with respect to the federalism role of the states as the primary care provider for the citizens, not the federal government,” Turner said. “It’s the primary care providers for their citizens, not the federal government.”

“It may be too humble for women’s health, you know,” Kagan responded.

The men on the court, who make up much of the conservative bloc, were more inquisitive with Solicitor General Elizabeth Prelogar, who argued on behalf of the Biden Administration. Justice Samuel Alito, for instance, inquired about EMTALA’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 said. “Have you ever seen an abortion statute that uses the phrase ‘unborn child?’”

Prelogar said the law’s use of the phrase was to make sure hospitals dealt with both the pregnant woman and her fetus during a medical emergency. “There were well-publicized cases where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren’t treating them,” she said.

Justice Neil Gorsuch similarly raised a similar question with Turner: “What do we do with EMTALA’s definition of ‘individual’ to include both the woman and, as the statute says, the unborn child?”

A ruling in the case is expected by the end of the Supreme Court term in June.

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