Emergency room abortion-care, mifepristone cases are both in front of the justices

As the Supreme Court considers whether to hear the medication abortion case, the ER case raises some big questions about post-Roe America.

This is the most important moment at the U.S. Supreme Court for abortion rights since the justices decided in late April to keep the medication abortion drug mifepristone available on current terms while a case challenging the drug’s approval makes its way through the courts.

Two post-Roe cases are being considered at the Supreme Court currently that raise key questions about federal law and the Biden administration’s powers to protect abortion access after Roe. The justices are being asked to hear appeals related to the mifepristone case — a challenge to the U.S. Food and Drug Administration’s approval of and access to the medication abortion drug — and to consider a request relating to the Biden administration’s application of the Emergency Medical Treatment and Active Labor Act (EMTALA) to abortion-related care.

Notably, the far-right Christian legal advocacy group Alliance Defending Freedom is at the court in both of these matters, having brought the mifepristone case on behalf of anti-abortion medical groups and recently having taken up representation of the state of Idaho against the Biden administration in the EMTALA case.

The Supreme Court’s 2022 decision overturning Roe v. Wade ended the constitutional right to an abortion, but it did not merely — as popular parlance would have it — “send the matter back to the states.” Although the decision certainly gave states authority to act where Roe had prevented restrictions previously, Justice Sam Alito’s opinion for the court in Dobbs v. Jackson Women’s Health Organization stated that “the authority to regulate abortion must be returned to the people and their elected representatives.”

That includes Congress and, from there, the executive branch in implementing federal law.

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The mifepristone petitions

On Friday, the justices are due to consider at their private conference whether to hear any or all of a trio of cert petitions relating to the closely watched mifepristone case out of Texas.

After U.S. District Judge Matthew Kacsmaryk in April purported to halt the 2000 approval of the medication abortion drug and subsequent loosening of restrictions on its use, the Supreme Court ultimately put that ruling on hold until the high court had a chance to review the case. Over the summer, the U.S. Court of Appeals for the Fifth Circuit ruled that the challenge to the 2000 approval was untimely, but the appeals court would — agreeing with Kacsmaryk — block the FDA’s decisions easing access to the drug since 2016.

The Biden administration and Danco Laboratories, the maker of Mifeprex, asked the justices to take up the case — on standing grounds and as to the decision on the loosening of the restrictions. The anti-abortion medical group challengers filed a “conditional cross-petition for a writ of certiorari,” arguing that, if the court takes up the Justice Department or Danco case, it also should take up arguments on the 2000 approval.

The court is considering all three petitions this Friday, although a decision could, under Supreme Court practice in recent years, not come until after the justices have considered the case in a second conference. (There also is the side-question of what effect the sought intervention of a trio of state attorneys general at the district court in the case will have on the Supreme Court’s consideration of these petitions.)

The EMTALA stay request

The mifepristone case has been heavily covered in the media. The second issue, involving the administration’s treatment of EMTALA post-Roe, has been proceeding on a lower profile, but now Idaho and the Idaho legislature are asking the court to weigh in. The EMTALA case comes to the court on shadow docket requests to put a lower court ruling against the state on hold during appeal — and raises some fundamental questions that deserve close attention.

Since before Dobbs was decided, the Biden administration had made clear in guidance from the Department of Health and Human Services, that “stabilizing treatment” obligations under EMTALA can, in limited circumstances, include abortion and abortion-related care.

There are two EMTALA cases being litigated on appeal currently. The first, in which Texas challenged the HHS guidance, is currently on appeal before the Fifth Circuit on a preliminary injunction blocking enforcement of the guidance in Texas. Arguments were heard on Nov. 7.

The second, in which DOJ sued Idaho with an argument that its near-total abortion ban would conflict with EMTALA, is on appeal before the U.S. Court of Appeals for the Ninth Circuit, with arguments set for January 2024. DOJ obtained a limited preliminary injunction in the case at the district court in 2022, barring enforcement of Idaho’s law to the extent it conflicts with EMTALA.

Idaho, however, has asked the Supreme Court to stay that injunction during the appeal. Alternatively, the state asks the justices to take up the case on the merits now for full review this term. (The Idaho legislature, which had been granted limited intervention at the district court, also is seeking a stay in the Supreme Court.)

Idaho’s request — now with representation from ADF and Cooper & Kirk, a conservative D.C. law firm — is a strongly conservative, anti-abortion document, laying out an extreme vision for the Supreme Court.

Although it poses as a request for procedural relief — a stay pending appeal — its goals are far more ambitious, pushing two key arguments that could, if accepted, upend the Biden administration’s efforts to provide the modest abortion-related protections it has sought to provide.

First, Idaho argues that EMTALA’s mentions of “unborn child” should be interpreted as statements that the law “treats an unborn child as a patient.”

As the state later argued, “EMTALA cannot require abortions sub silentio when it demands care for ‘the unborn child’ in its plain text. … EMTALA’s regard for the unborn child’s life and health precludes interpreting it as a mandate to kill that child.”

The implications of such a ruling are many — and related to “personhood” arguments that would hold that a fetus is to be given full protection of the law, including and up to potentially banning all abortion, as constitutional requirement under the Fourteenth Amendment. This is not that. It is a statutory argument about EMTALA — a misleadingly incorrect argument, we shall see, but nonetheless, the thread to constitutional personhood arguments is pretty easy to see.

Second, Idaho argued that the “major questions doctrine” applies here.

The implication of Idaho’s argument is that, because abortion is contentious, any claimed abortion-related protections must be explicitly and specifically provided for in federal law — even if (and specifically because) specificity was deemed unnecessary because the law was passed when abortion-related care was presumed under Roe’s protections.

In the Justice Department’s response to Idaho and the state’s legislature, it responded to both arguments. As to the first, DOJ stated that Idaho’s brief misleadingly (at best) discussed the use of “unborn child” in EMTALA.

Specifically, DOJ noted, “Three of those references [to “unborn child”] address possible harm to an “unborn child” only when considering transfer of a pregnant individual in labor.” And the fourth was an effort to clarify additional coverage to a pregnant person because, initially after EMTALA’s passage, “any risks to the ‘unborn child’ were relevant only to determining whether a patient was in ‘active labor.’” The amendment expanded when risks to the fetus could be considered, but, DOJ wrote, “this insertion did not alter EMTALA’s basic operation: what must be stabilized is the ‘medical condition’ … of the ‘individual’“ — as in, the pregnant person.

Second, as to the “major questions doctrine” being invoked, DOJ argued that this is just not the type of action considered under the doctrine.

Setting the issue front and center, DOJ concluded this section by stating, “This Court’s decision in Dobbs did not retroactively transform that straightforward application of EMTALA as enacted into a ‘major question,’ calling for a departure from the plain statutory text.”

Briefing from Idaho is complete, but the legislature is yet to file a reply. A ruling on the shadow docket like this can come any time after briefing is complete, although delays can come if a justice is writing (usually in dissent from the court’s decision).