In E.R. abortion care case, the justices face the questions of a post-Roe America

The women justices spoke out about the real consequences of the case, but the decision will likely come down to two men: Chief Justice Roberts and Justice Kavanaugh.

The women justices of the U.S. Supreme Court on Wednesday expressed varying levels of skepticism about Idaho’s arguments that federal emergency room protections do not conflict with Idaho’s near-total ban on abortion — even as the state was fighting at the Supreme Court to overturn a court order that blocked its abortion ban from being enforced when the federal law would require an abortion.

It is a jumble of an argument that led Justice Amy Coney Barrett at one point to ask the lawyer defending Idaho’s position, “Why are you here?”

Combined, those four justices — Barrett and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — painted a stark portrait of the consequences of Idaho winning in its appeal, bringing a real-world approach to arguments at the high court that can often get hung up on technical debates that elide the effects of the court’s decisions.

The case over the Biden administration’s interpretation of the Emergency Medical Treatment and Labor Act (EMTALA) was an obvious result of the Supreme Court’s June 2022 decision overturning Roe v. Wade, and the women justices — including Barrett, who had joined the five-justice majority ending Roe — wrestled with the consequences of that ruling far more directly than the men did on Wednesday.

At the end of the two hours of arguments, however, it appeared that the decision in the case would come down to two of those men: Chief Justice John Roberts and Justice Brett Kavanaugh.

Roberts, who had refused to join the majority in the decision overturning Roe while nonetheless supporting the majority’s desire to allow more abortion restrictions, primarily was focused Wednesday on whether the Biden administration’s approach would lead to religious hospitals or doctors being forced to perform abortions.

Solicitor General Elizabeth Prelogar insisted that conscience protections, if asserted, would protect both individual doctors and institutions.

Kavanaugh, meanwhile, was focused on whether exceptions since written into Idaho’s ban — both in the form of a legislative amendment and through an Idaho Supreme Court ruling — have eliminated any conflict between the state law and what the Biden administration says is required under the federal law.

When Joshua Turner, the chief of constitutional litigation and policy in Idaho Attorney General Raúl Labrador’s office, insisted that the law allowed abortions in those circumstances highlighted by the Justice Department on a “case-by-case” basis, Barrett told him, “You’re hedging.”

Noting Turner’s refrain that Idaho law allows an abortion in those circumstance on “a doctor’s good-faith medical judgment,” Barrett replied, “What if the prosecutor thought differently?”

Turner admitted, “It may result in a case.”

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The law

Before the Supreme Court had even overturned Roe, the Health and Human Services Department had made clear in September 2021 that all hospitals subject to EMTALA — basically, hospitals that receive Medicare funds — must provide abortion when needed in limited circumstances.

Under Roe, of course, this was rarely an issue because abortion was constitutionally protected up to viability. But, as restrictions increased, and the court’s composition changed, the Biden administration made clear how the 1986 law protected some limited abortion case.

After the Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization, HHS reiterated in guidance that, under EMTALA, hospitals must provide “stabilizing treatment” or “an appropriate transfer” to a hospital that can do so if a patient presents with an “emergency medical condition.” The law defines that to include conditions that risk “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.”

If an abortion is the necessary stabilizing treatment, the guidance stated, “the physician must provide that treatment.” The guidance also specifically explained that EMTALA preempts state laws that conflict with EMTALA obligations, including state abortion bans. As law professor Greer Donley explained at Law Dork, this ultimately involves a very small number of cases and is an extremely narrow abortion protection.

Because Idaho law only provides an exception for abortions when necessary to save the life of the mother, however, EMTALA would pretty clearly sweep more broadly.

This meant that abortions would be required under EMTALA in circumstances where Idaho law — which threatens doctors with criminal prosecution and the loss of their license if they violate the law — bans them. As such, the Biden administration sued Idaho, securing a preliminary injunction blocking enforcement of the state’s abortion ban insofar as it conflicts with EMTALA requirements. Idaho appealed, and the Supreme Court agreed to take the case in January, skipping over the U.S. Court of Appeals for the Ninth Circuit by granting certiorari before judgment in the case.

(The Justice Department is also currently seeking Supreme Court review of a case in which the U.S. Court of Appeals for the Fifth Circuit sided with Texas in its lawsuit against the Biden administration on this same question. The justices will almost certainly hold that petition until after a ruling in this case.)

Idaho argues that the Biden administration and preliminary injunction are wrong, on several seemingly contradictory grounds.

As part of its preemption argument, Idaho argues that there is no conflict between the federal and state laws. To do that, Turner explained to the justices on Wednesday that abortions would be allowed under Idaho’s law in all of the scenarios raised by the the Justice Department in its brief — again, if necessary in the “doctor’s good-faith medical judgment.” At the same time, Turner was also arguing that the federal law cannot require any care that is illegal under any state law. And, finally, he also argued that Idaho needs the injunction against its full enforcement of its abortion ban tossed out.

The arguments

Telling Turner that “you're sort of putting preemption on its head,” Sotomayor laid out the consequences of Idaho’s argument by applying the equivalent of Idaho’s abortion restrictions to diabetes. Detailing an extensive scenario where a person might not face death, but would face the sort of serious risk to bodily functions that is supposed to be covered under EMTALA, if a state banned insulin, she noted, “Federal law would say you can't do that.”

Switching back to Idaho’s arguments in Wednesday’s case, she said, “Idaho is saying, unless the doctor can say in good faith that this person's death is likely, as opposed to serious illness, they can't perform the abortion.”

Jackson, meanwhile, pressed Turner on his claim that there is no conflict and that, to the extent the Biden administration thinks there is, they’re wrong because EMTALA set any standard of care with, as Turner said, the “backdrop” of state law.

“You say no conflict because the federal government in this situation wanted the states to be able to set the standards,” Jackson said. “And I guess I don't understand how that's even conceivable, given this standard, given this statute.”

When Prelogar presented the federal government’s argument, Jackson asked her whether it was true that there’s no conflict.

“No. That is gravely mistaken on three levels,” Prelogar answered. “It's inconsistent with the actual text of the Idaho law. It's inconsistent with medical reality. And it's inconsistent with what's happening on the ground.”¹

For her part, Kagan pressed Turner on the fact that even Idaho — in its law and under the Idaho Supreme Court’s interpretation of it — acknowledges that abortion is the accepted standard of care for situations where death would result, a point Turner had to agree with.

Then, she discussed a situation where a woman’s “life is not in peril, but she's going to lose her reproductive organs, she's going to lose the ability to have children in the future, unless an abortion takes place.” That is, Kagan said, exactly the sort of situation where EMTALA would say that “the abortion is necessary to assure that no material deterioration occurs.

“And yet Idaho says, ‘Sorry, no abortion here.’”

In response, Turner merely said that “the hypothetical you raise is a very difficult situation,” adding, “[N]obody is arguing that they don't raise tough medical questions that implicate deeply theological and moral questions.”

Then, in a line that was quickly passed by, Turner said, “Idaho, like 22 other states, and even Congress in EMTALA recognizes that there are two patients to consider in those circumstances. And the two-patient scenario is tough when you have these competing interests.”

He didn’t say so explicitly, although both Justices Neil Gorsuch and Sam Alito did, but Turner was referring to a provision in EMTALA’s definition of “emergency medical condition” that specifies the protections, “with respect to a pregnant woman,” include “the health of the woman or her unborn child.”

Turner responded to Gorsuch asking “what do we do with” that provision by saying that “it would be a strange thing for Congress to have regard for the unborn child and yet also be mandating termination of unborn children.”

It is not exactly the Fourteenth Amendment “fetal personhood” argument that would amount to a constitutional ban on abortion, such as is advanced by the Heritage Foundation and others on the far right, but is definitely adjacent to it and would be used to advance those constitutional arguments.

Notably, both at the Ninth Circuit and Supreme Court, Idaho has received legal help, “without charge,” from the Alliance Defending Freedom, the far-right Christian legal advocacy organization. The group’s president, Kristen Waggoner, was among those in the court on Wednesday for the arguments. Just last month, Waggoner espoused her support for the constitutional “fetal personhood” argument in a Politico interview.

Later, during Prelogar’s argument, Alito raised the issue again.

“We've now heard — let's see — an hour and a half of argument on this case, and one potentially very important phrase in EMTALA has hardly been mentioned,” Alito said. “Maybe it hasn't even been mentioned at all.” It had. “And that is EMTALA's reference to the woman's ‘unborn child.’“

He continued, “Have you ever seen an abortion statute that uses the phrase ‘unborn child’?”

As Alito went through his argument on this point, he finished one question with his self-satisfied grin and he did this thing — I don’t know that I’ve seen any other justice do it, but he’s done it multiple times — where he looks at his colleagues on each side of him, appearing to be scanning the bench to see if they are as impressed with his question as he is.

As Prelogar explained in response, however, the provision was added as an amendment to EMTALA in 1989 not in any anti-abortion effort but rather because, even after EMTALA, “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.”

For his part, Justice Clarence Thomas only raised a handful of questions, avoiding the consequences of the case altogether, and focusing on the type of preemption case brought here — since the state isn’t the party regulated by EMTALA — and a related Spending Clause question.

When Turner’s modest interpretation of the federal law had been laid bare, Kagan told him at one point toward the end of his argument, “[Y]our theory of EMTALA is that EMTALA preempts none of it?”

She continued: [A] state tomorrow could say even if death is around the corner, a state tomorrow could say even if there's an ectopic pregnancy, that still a choice of the state and EMTALA has nothing to say about that?”

“Yeah,” Turner answered. “And that understanding is a humble one with respect to the federalism role of states,” which he said are “the primary care providers for their citizens, not the federal government.”

Kagan replied: “It may be too humble for women's health, you know?”

1. This paragraph and the preceding one were added after initial publication, at 5:50 p.m.