5 Takeaways From the Supreme Court Arguments on Idaho’s Abortion Ban

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The abortion case before the Supreme Court on Wednesday featured vigorous questioning and comments, particularly by the three liberal justices. At issue is whether Idaho’s near-total ban on abortion is so strict that it violates a federal law requiring emergency care for any patient, including providing abortions for pregnant women in dire situations.

A ruling could reverberate beyond Idaho, to at least half a dozen other states that have similarly restrictive bans.

The implications of the case could also extend beyond abortion, including whether states can legally restrict other types of emergency medical care and whether the federal law opens the door for claims of fetal personhood.

Here are some takeaways:

Idaho’s ban allows abortion to save the life of a pregnant woman, but not to prevent her health from deteriorating. The federal government says it therefore violates the Emergency Medical Treatment and Labor Act, or EMTALA, which was enacted nearly 40 years ago.

EMTALA says that when a patient goes to an emergency room with an urgent medical issue, hospitals must either provide treatment to stabilize the patient or transfer the patient to a medical facility that can, regardless of the patient’s ability to pay. It says that if a state law conflicts with the federal law, the federal law takes precedence.

A lawyer representing Idaho, Joshua Turner, told the Supreme Court that the state does not believe its abortion ban conflicts with the federal law. He said the ban allows emergency departments to provide abortions if a pregnant woman has a medical problem that is likely to lead to her death, not just if she is facing imminent death.

The three liberal justices strongly objected to Mr. Turner’s interpretation and pointed out situations in which women in critical situations would be denied abortions under Idaho’s ban. When Justice Sonia Sotomayor asked if the ban would prevent abortion in a situation where a woman would otherwise lose an organ or have serious medical complications, Mr. Turner acknowledged that it would. “Yes, Idaho law does say that abortions in that case aren’t allowed,” he said.

Solicitor General Elizabeth B. Prelogar, representing the federal government, said Idaho’s abortion ban, which was allowed to take effect this year, had significant consequences for pregnant women and emergency room doctors.

“Today, doctors in Idaho and the women in Idaho are in an impossible position,” she said. “If a woman comes to an emergency room facing a grave threat to her health, but she isn’t yet facing death, doctors either have to delay treatment and allow her condition to materially deteriorate or they’re airlifting her out of the state so she can get the emergency care that she needs.”

Justice Samuel A. Alito Jr., one of the most conservative justices, asserted that the federal government and the liberal justices were giving hypothetical examples. But Justice Elena Kagan, a liberal, noted that the hospital with the most advanced emergency room services in Idaho had needed to transfer six women to other states for emergency abortions so far this year.

There was also discussion about potential consequences for other types of medical care if Idaho’s ban was allowed to stand. Justice Sotomayor said that would allow states to pass laws saying “don’t treat diabetics with insulin, treat them only with pills,” contradicting the best medical judgment of a doctor who “looks at a juvenile diabetic and says, ‘Without insulin, they’re going to get seriously ill.’”

Justice Alito, in particular, focused on the fact that EMTALA includes several mentions of the phrase “unborn child.”

“Doesn’t that tell us something?” he asked. He suggested that it meant that “the hospital must try to eliminate any immediate threat to the child,” and that “performing an abortion is antithetical to that duty.”

That was an argument that supports efforts by abortion opponents to establish “fetal personhood” rights and declare that life begins at conception. Idaho’s lawyer, Mr. Turner, said on Wednesday that “there are two patients to consider” when pregnant women seek emergency room care.

The federal government has pointed out that three of the four mentions of “unborn child” in EMTALA refer only to when a woman in labor might be transferred to another hospital.

Ms. Prelogar described the intent of the fourth reference to “unborn child,” which was added to the law later. She said it referred to situations in which a pregnant woman goes to an emergency room and her pregnancy is in danger but her own health is not currently at risk. In that case, the law would require hospitals to do what they could to save the pregnancy. That would not be a situation where an abortion would be provided, she said.

Ms. Prelogar also emphasized that usually in the kinds of pregnancy emergencies in which an abortion is typically required, there is no possibility for a live birth. “In many of these cases, the very same pregnancy complication means the fetus can’t survive regardless,” she said. “There’s not going to be any way to sustain that pregnancy.”

In such cases, she said, “what Idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health consequences with no possible upside for the fetus. It stacks tragedy upon tragedy.”

Mr. Turner said that EMTALA would allow emergency rooms to provide abortions for pregnant women who are experiencing depression and other mental health issues. Abortion opponents have said that this could be used as a loophole to allow many patients to obtain abortions despite state bans.

Justice Amy Coney Barrett, another conservative, expressed some skepticism about Idaho’s claim. Justice Alito pressed the solicitor general about it.

“Let me be very clear about our position,” Ms. Prelogar replied. “That could never lead to pregnancy termination because that is not the accepted standard of practice to treat any mental health emergency.”

She said antipsychotic drugs and other psychiatric treatments would be administered to such patients. The treatment would not be abortion, she said, because “that won’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place.”

Justice Barrett and Chief Justice John G. Roberts Jr. asked if EMTALA’s requirement for emergency medical care prevented emergency room doctors or hospitals with moral or religious objections from opting out of providing abortions.

The solicitor general said that federal conscience protections take precedence. So individual doctors can invoke conscience rights to avoid providing abortions, Ms. Prelogar said. And although she said it would be rare for an entire hospital to invoke a moral objection to terminating pregnancies in the kinds of medical emergencies that EMTALA applies to, hospitals with such objections could opt out as well.



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