Law Dork Video: Anti-abortion rights reach the Supreme Court

Law Dork Video: Cohen, Donley, and Rebouché discuss the upcoming mifeprisone and EMTALA arguments at SCOTUS, as well as what other reproductive rights issues they're watching.

On Tuesday, and again in a month, the justices of the U.S. Supreme Court — less than two years after overturning Roe v. Wade — will be considering, in turn, whether anti-abortion groups can block federal drug safety decisions and whether anti-abortion states can block federal emergency room protections.

The cases to be heard this week over access to mifepristone are rightly front and center now, but it is important to keep these cases in the context of the other litigation — at the Supreme Court this term and happening in lower federal courts and state courts — as well as in the context of legislation, ballot measures, and other reproductive rights work.

Law professors David Cohen, Greer Donley, and Rachel Rebouché — who spoke in depth with Law Dork about the mifepristone cases — are focused on the bigger picture as well. In the second part of our Law Dork video discussion, we talked about the Emergency Medical Treatment and Labor Act (EMTALA) cases before the justices, with arguments set for April 24; the IVF case out of Alabama and other litigation; abortion shield laws; and the upcoming presidential election and votes on abortion ballot measures.

Rebouché is the dean of Temple University’s Beasley School of Law, Cohen is a professor at Drexel University’s Kline School of Law, and Donley is an associate professor at University of Pittsburgh’s School of Law. They write extensively together on abortion, reproductive rights, and related issues — in academic literature and mainstream media.

Of the two sets of abortion-related Supreme Court cases this term — over mifepristone and EMTALA — Rebouché summed it up best when she said, “They are related, but I think they are chipping away at a different source of power for the federal government.”

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Watch and read the earlier Law Dork video discussion about the mifepristone cases here for a full preview of Tuesday’s U.S. Supreme Court arguments.

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In the EMTALA cases, the Biden administration sued Idaho after the state’s near-total abortion ban went into effect after the 2022 Dobbs v. Jackson Women’s Health Organization decision ended Roe. At issue is a provision in EMTALA that the Biden administration says requires physicians to perform abortions in limited instances.

Under the law, the Biden administration says, hospitals subject to EMTALA (basically, all that receive Medicare funds) must provide appropriate “medical screening examination” and, if an “emergency medical condition” is found, then also provide “stabilizing treatment” or “an appropriate transfer” to a hospital that can do so. If the necessary stabilizing treatment is an abortion, “the physician must provide that treatment,” the administration’s policy states.

Idaho disagrees, and the Alliance Defending Freedom — the far-right Christian legal advocacy group — is now representing the state without charge. ADF is also backing the mifepristone challenge. Erin Hawley, who will be arguing the mifepristone case on behalf of the Alliance for Hippocratic Medicine on Tuesday, also signed the contract between ADF and Idaho Attorney General Raúl Labrador in the EMTALA litigation.

While the mifepristone case, Rebouché said, is about “federal power and the role of an agency to determine a drug's safety,” she described the EMTALA case as one about “abortion definitions” and preemption. On that front, she turned to Donley, who has a forthcoming law review article addressing the issue of definitions.

Donley highlighted an unusual aspect of the EMTALA case, noting that even what is being sought here by the Biden administration is exceptionally small.

“I think the thing that's really important to know here is that EMTALA is the most narrow possible victory,” Donley said. “What Biden's administration is trying to do through this federal law is literally expand the small number of states that only have a life exception but no health exception into a health exception.”

And yet, in this environment, even that has become a Supreme Court case.

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This transcript has been edited and condensed for clarity.

LAW DORK: That's not even the only abortion related case that we have coming up at the court this term. We've got the EMTALA litigation that I've been covering. It was sort of the case that before anybody was covering it, that I was watching these dueling lawsuits in both Idaho and Texas. And now we have the Idaho case that's going to be in this April argument sitting. Obviously, I'll be getting more into it as we get into to that case. But what is the contextualization between the two cases? Is there any reason any way that people should be looking at these as related? They both relate to how the Biden administration is dealing with a post-Roe landscape. And while I had the three of you on the line, as it were, I thought I would ask how have you all been thinking about that case? And how it fits into this bigger discussion, and how it matters.

RACHEL REBOUCHÉ: I would defer to Greer, because I feel like Greer has — she has a piece coming out in Duke Law Journal that is the definitive piece on abortion definitions. Like it is the piece to tell you what —

GREER DONLEY: Rachel is my hype girl tonight. So sweet.

REBOUCHÉ: But it's true. It's true. I feel like that's the place to look for what's happening in EMTALA because I am a comparativist by heart. And I think that there's a lot of room for interpreting — in some places, not Texas — exceptions broadly. I think there are lots of examples of lots of places where "life" became "health," "health" became "mental health," "mental health" became "so seeking out circumstances," and then that I'm an eternal optimist about that. But I think there are real dangers in putting your eggs in that basket in this country because the laws are so badly written. They're so terrible for the entities that have to interpret them and the supreme courts and states that are going to apply them. We have a long way to go. And I see that as very different than the Alliance for Hippocratic Medicine litigation, which touches on, not so much preemption and not so much definition, but federal power and the role of an agency to determine a drug's safety. So I think Comstock is a huge — I raised my hand. But I also think that this is part and parcel of a Supreme Court agenda that says, "We just don't believe the FDA. When they said in 2021 that picking up mifepristone is safe at a healthcare healthcare facility— suspending that rule. Of the 20,000 drugs that we regulate, we don't need you to pick it up and take it by yourself at the same time." I think there's a lot going on there that's different than the definition of "abortion" and the definition of exceptions. They are related, but I think they are chipping away at a different source of power for the federal government.

LAW DORK: And Greer, what, what is that power?

DONLEY: Obviously, the three of us in our very first paper together, were writing about, hoping and trying to push the Biden administration to do more. And in some sense of the EMTALA litigation really came — not to say that we were the only reasons that the Biden administration pursued EMTALA, we certainly weren't — but that that was one of the things that Biden has been able to do. It's I think the thing that's really important to note here is that EMTALA is the most narrow, possible victory. Right? What Biden's administration is trying to do through this federal law is literally expand the small number of states that only have a life exception but no health exception into a health exception. But in all of the states with the health exception, it's this exceptionally narrow health exception. Right? So we're talking about the smallest number of abortions you can really imagine in every state. That is what this lawsuit concerns. For the mifepristone case we're talking about huge implications, like David said, huge numbers. Within EMTALA, in my opinion, this case is — it's mostly symbolic. It's "Can you expect to be taken care of and have some sense of safety if you're pregnant in this country, no matter where you live?"

LAW DORK: For me, when I started reading — basically, when when Alliance Defending Freedom started joining in the Idaho briefs, they got much more aggressive. And that stay request brief was downright absurd at points. And to me just seemed like, that was my thought was, "If they're fighting this hard for this —

DONLEY: Yeah.

LAW DORK: — what would they do with something more extreme — not even more extreme, more broad?"

REBOUCHÉ: I also think that the Alliance [for Hippocratic Medicine] litigation, it was to throw up — It is about standing, and it is about FDA power. It's about all those things. But it's also just a contestation of facts. Like none of these studies matter. They were misread or misinterpreted for the last 20 years, and EMTALA, like, the Texas brief, it's not wrong that, like Greer said EMTALA's not a very progressive piece of legislation. It actually was meant to prevent patient dumping. And the argument that it doesn't necessarily give a platform for a state to require a certain kind of medical care — I don't agree with the argument, but it's an argument. Like it's not the kind of argument in the AHM litigation where I'm like, "That doesn't even make sense. I don't even know where that argument comes from." The EMTALA litigation is a little different in that way, without trying to bolster the anti-abortion argument for EMTALA application, but at least it's plausible that that is an interpretation that you can disagree with. For EMTALA. Where the FDA's approval in 2000. And how, you know, we go into this in our paper, and how they have read what the FDA did under its then-powers under Subpart H, it's just — it's crazytown.

DONLEY: And, to your point Chris, too, from earlier. One of my big errors of judgment from Dobbs was — right after Dobbs, I remember being like, "Well, no one's gonna challenge Biden's EMTALA policy." I remember I said that on Twitter, and I had, Liz Sepper wrote on Twitter, "You're just wrong." And I was like, "Really? You really think?" She knew Texas better than me.

REBOUCHÉ: Texas had teed it up. They'd already written their own medical emergency provision that contradicted EMTALA. They were ready for the fight.

LAW DORK: And it's it's obviously not even just EMTALA. We've all been writing about and responding to the IVF ruling in Alabama. We have this this Title X ruling out of the Fifth Circuit that came out of another Matt Kacsmaryk ruling relating to contraception availability that came down on March 12. These rulings are going to keep coming regarding abortion, reproductive rights. To close, we can do another round robin and we'll start on the other side this time. What are you thinking about as the next issue that people aren't yet talking about or aren't talking about enough that you think is going to become an issue, either before the election or potentially right after the election if Trump were to win.

DAVID COHEN: Every four years I have the same answer, which is that the Democrats are not talking about the Supreme Court justices enough — and appointing them — because right now we have, Alito and Thomas are in their mid-70s. Obviously, we have no idea how much longer they're going to be on the court. But we do have a good sense that probably if Trump wins, they probably are going to retire so that they can be replaced by someone who's, what, 28 and be on the court for another 70 years. So at the very least, it's important to think about their ages to try and make sure they don't have the opportunity to voluntarily step down at a favorable point in time and be replaced by someone who's probably more conservative than them, believe it or not, and much younger.

But on the other hand, there's also the opportunity that with a Democratic president for another four or eight years, that we could get a retirement that is not a voluntary one, not one where they planned retirement — or have an opening on the court. And I don't think the Democrats ever talk about that enough. The Republicans do, they're very good about that. But the Democrats don't. And so I think we need to be talking about the fact that the Supreme Court — yes, we have lost it right now, yes, it's a 6-3 majority that's very conservative. But it's not going to be that way forever, and if we talk about it as forever we're doing ourselves a disservice because we don't know when that will change and we need to make that an election issue every, every four years. And it's not right now. I can't recall Biden or Harris talking about the fact that we've got two justices who are probably going to retire if Trump wins.

LAW DORK: Rachel?

REBOUCHÉ: I think we have a critical mass of states that have passed shield laws, which are really important — 17 states. And they do a lot of important and crucial work in protecting people who are providing services. And I gotta give a hat tip to David, who really was the engineer of that in our paper, who thought about how that would work and why and has been really a tireless advocate for reasons that have all been for the good of abortion access. And I think that we're all, the three of us, are thinking about what comes next. So just like Comstock, I don't think there's any advantage in putting your head in the sand and saying, "Yeah, these laws are just going to exist, and they're never going to be challenged, and no one's ever going to be sued, and nothing's ever going to happen, and they're just going to exist."

I think the next challenge for us, as scholars and advocates and lawyers, is to start being proactive about what we're going to do to implement the shield laws and how we're going to do it effectively. And that means talking about the standards of care, it means talking about telehealth regulations, it means being on the offensive of what comes next. Because there's somebody else on another webinar, on another Zoom who's already having the same conversation about what they're going to do in response to shield laws. And so, for me, that's where I'm focused, because I think that litigation is important, I think the Supreme Court's important, but I think more important is how we safeguard access in real-time ways that allow providers and patients to feel safe.

LAW DORK: And, finally, Greer.

DONLEY: Obviously Comstock, but we already talked about that. The thing that I think a lot about and I've seen a lot of movement in this direction, I would say particularly the last year, but I I would love to see more and more focus on integrating abortion into a greater suite of reproductive justice issues. I think in some sense the Alabama decision related to IVF was one step that really drove that conversation forward. It's not just abortion, it's also fertility care. But we have to always be talking about it. Also with our maternal mortality crisis, which is shocking and insane, and also with the fact that we have one of the few countries in the world that doesn't have paid parental leave, and, and, and, and. Pregnancy loss in this country is terrible. And, so what's next? I would really like — I think the country is coming to terms with the truth, which is that abortion is part of comprehensive reproductive health care. The only way you have healthy families is with abortion. But making that case more fully is going to be something that happens over the next decade.

LAW DORK: Thank you all.

COHEN: I just want to throw in one more thing we didn't talk about and I'll just be quick. The ballot initiatives in November. Abortion rights ballot initiatives are undefeated post-Dobbs. It's 7-0, 8-0 if you add in the Wisconsin Supreme Court justice, who was really — that was all about abortion. And it's in some very conservative states. There are going to be many more ballot initiatives in November. And so it'll be very interesting to watch if that continues, if that streak continues, and if the American people continue to basically say, at least when this is a one-issue vote, "We are absolutely pro-choice." And so far, we've seen that and I'm hoping that streak continues in November. So I think that's a big part that we have to be watching, too.

LAW DORK: As an Ohioan who has been faced with increasing ignominy for my state, I will say that I had held up hope the entire time and when they came through, both times that the Republicans tried to stop them there, that was a point of personal pride.

COHEN: And Greer shares your pride as a Kansan because Kansas was the first.

LAW DORK: They were the first one. Well, thank you so much, Rachel, and Greer, and David. I always, immediately click on the link when when there's a new, the trio has a new op-ed. What are they on now? I just think that you all bring both careful work to these discussions, as well as really diving into the issues before other people are quite on the same page. So I really appreciate your work and appreciate your time today.

DONLEY: Well, we're lucky to work together, we kind of love each other a lot. And thank you so much for having us.

REBOUCHÉ: Thank you.

COHEN: Yeah, thank you, Chris.