In 2022, five justices of the Supreme Court declared their intention to return the issue of abortion to state legislatures. However, two years later, the court finds itself once again at the center of America’s protracted abortion battle. A month ago, the issue was access to abortion pills, a fight that opponents of abortion appear destined to lose. On April 24th, the question shifted to whether state bans criminalizing abortions can override a federal law concerning emergency care.
The Emergency Medical Treatment and Labor Act (EMTALA), enacted in 1986, requires hospitals receiving federal funds to provide “stabilizing treatment” to individuals presenting at their emergency rooms (ERs). In 2022, the Biden administration notified hospitals that this obligation includes offering abortion when a woman’s pregnancy poses immediate risks to her health. However, a law passed the same year, the Idaho Defense of Life Act, prohibits abortion except in cases of rape or incest, or when “necessary to prevent the death of the pregnant woman”.
The case before the Supreme Court, Moyle v United States, involves situations where a woman’s health is in imminent danger but she is not facing imminent death. During oral arguments, Joshua Turner, defending Idaho’s statute, faced a barrage of questions from the three liberal justices. Justice Elana Kagan pointed out that Idaho’s law explicitly recognizes abortion as the standard of medical care when a woman’s “life is in peril.” She questioned whether EMTALA could extend that same standard to cases when her “health is in peril” and she could “lose her reproductive organs.” Turner responded that such questions raise “tough medical questions that implicate deeply theological and moral questions” that should be answered by states. Justice Kagan countered that “that would be a good response if federal law did not take a position on what you characterize as a tough question,” noting that EMTALA “says that you don’t have to wait until the person is on the verge of death”.
Justice Sonia Sotomayor cited the case of a woman in Florida who was sent home from the hospital despite doctors believing she needed an abortion to avoid sepsis and uncontrolled hemorrhage. The doctors “refused to treat her because they couldn’t say she would die.” She later returned to the hospital, after bleeding at home and passing out, and an abortion saved her life. Sotomayor questioned whether Idaho’s law would require a woman to endure a similar experience, but Turner could not provide a clear answer.
Justice Ketanji Brown Jackson engaged Turner in a discussion on the Constitution’s Supremacy Clause, which states that “what the federal government says takes precedence.” The Court’s conservative justices largely avoided questions related to women’s reproductive health. However, they raised three main objections to the Biden administration’s position, suggesting their sympathies may lie with Idaho.
Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Clarence Thomas noted that EMTALA was enacted under the Constitution’s Spending Clause and questioned whether it was appropriate for the government to withhold Medicare funds unless emergency abortions are provided. Turner argued that such conditions must be “clear and unambiguous” in the statute itself. Elizabeth Prelogar, the solicitor general, countered that the court should not consider this argument as the lower courts “did not address” it.
Conservative justices also raised the issue of conscience exemptions, questioning whether doctors who object to abortion would be required to follow a federal mandate. Prelogar emphasized that “individual doctors are never required to perform an abortion.” However, one objection to the Biden administration’s position seemed to gain more traction: the concern that adding a health exception via EMTALA could lead to a surge in elective abortions based on mental health claims. Prelogar attempted to allay these concerns, stating that it would be “incredibly unethical” to terminate the pregnancy of a woman who presents at the ER “with some grave mental health emergency”.
Mary Ziegler, a law professor at the University of California, Davis, commented that while “it seems like Idaho will prevail,” there is “a lot of ambiguity” about how the justices will justify such a ruling, as all the pathways explored during the hearing were unclear. Ziegler highlighted Justice Kagan’s observation that six women had been airlifted out of state from one Idaho hospital since the law went into effect as a stark reminder of the real-world consequences of the debate. Kagan stated that “it can’t be the right standard of care” to force someone into a helicopter.
