Supreme Court hears case about emergency abortion care

Conservative Justice Samuel Alito asked US Solicitor General Elizabeth Prelogar to explain why the federal law in question, the Emergency Medical Treatment and Labor Act (EMTALA), uses the term “unborn child.”

“It’s not an odd phrase when you look at what Congress was doing,” at the time Prelogar said. The law was amended to add the term in 1989.

“There were well publicized cases where women were experiencing conditions their own health and life were not in danger, but the fetus was engraved distress and hospitals weren’t treating them," Prelogar said.

The term is referenced multiple times in law, including in the definition of a medical emergency scenario where the health of an unborn child is in serious jeopardy, where restricting the transfer of a patient in labor would put the safety of the unborn child at risk. 

The Charlotte Lozier Institute, an anti-abortion think tank, said in a friend-of-the-court brief that that EMTALA “expressly protects the lives of unborn children” and that it requires hospitals to “to follow the two-patient paradigm to protect both the mother and her unborn child.”   

“The United States’ attempt to diminish the ‘unborn child’s’ life as secondary—one that must be protected only if her mother’s health is not threatened but loses all value if her mother’s health is in jeopardy—is atextual,” the brief said. “Congress expected hospitals and physicians to preserve both lives wherever possible.”  

If a pregnant woman in Idaho comes to an emergency room facing a grave threat to health but isn’t facing death, doctors have to delay her care until she deteriorates “or they’re airlifting her out of the state so she can get the emergency care that she needs,” US Solicitor General Elizabeth Prelogar said in her argument.

There has been an uptick in the number of patients transferred for life-saving abortions after Idaho banned the procedure, according to Dr. Jim Souza, the chief physician executive for Boise-based St. Luke’s Health System.

St. Luke's, Idaho's largest hospital system, wrote in a friend-of-the-court brief that the legal uncertainty created by the state's abortion ban means patients with emergency pregnancy complications are more likely to be transferred out of state for care unless they're at "imminent risk of death."

Souza said that in 2023, during an injunction on enforcement of the law as it pertained to the Emergency Medical Treatment and Labor Act (EMTALA), only one patient in the emergency department was recommended to be transferred out of the state.

Dr. Julie Lyons, a family medicine physician with St. Luke’s Health System, told CNN in February that she counsels patients on their first prenatal visit to "buy life-flight insurance," in case they face a "rare situation that a complication does happen."

Some doctors have also left Idaho as a result of the law, Souza said, creating a “destabilizing effect” on the hospital system.

Several of the justices are asking about Congress' ability to impose requirements on hospitals in exchange for providing funding.

In this case, one of the issues at play is whether the government can require hospitals that receive federal Medicare funding to perform abortions in emergency situations.

Conservative Justice Amy Coney Barrett asked how far the government's argument could be carried: Could a future administration withhold Medicare funding from hospitals, for instance, if they performed gender transition surgeries?

Conservative Justice Neil Gorsuch picked up on the theme with a series of similar, skeptical questions.

"Could the federal government essentially regulate the practice of medicine in the state through the spending clause?" he asked US Solicitor General Elizabeth Prelogar. "It could ban abortion across the nation through the use of it spending clause authority?"

Prelogar responded, essentially, yes.

"Congress," she said, "does have broad authority."

Chief Justice John Roberts asked whether individual doctors could have a “conscious objection,” or could refuse to provide an abortion because of their personal religious convictions.

If doctors morally object to performing an abortion, Roberts asked, then how would hospitals still meet the their requirement under the Emergency Medical Treatment and Labor Act (EMTALA) to provide care.

Prelogar said yes, an individual doctor could consciously object to terminating a pregnancy.

However, if the hospital itself is subject to EMTALA, then “the hospital should have plans in place to honor the individual doctor’s conscience objection while ensuring appropriate staffing for emergency.”

Justice Amy Coney Barrett, who will be a key vote to decide the case, earlier asked a similar question, showing how concerned the two conservatives are about that issue.

US Solicitor General Elizabeth Prelogar said in her opening arguments that federal law guarantees pregnant women in medical crisis be able to get stabilizing care.

“[The Emergency Medical Treatment and Labor Act]’s promise is simple but profound,” Prelogar said. “No one who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care.”

Prelogar continued: “This case is about how that guarantee applies to pregnant women in medical crisis.”

“But Idaho makes termination a felony punishable by years of imprisonment unless it’s necessary to prevent the woman’s death,” she added.

Remember: The US Department of Justice brought a lawsuit against Idaho claiming the federal law overrides the state's abortion ban in situations where a woman’s pregnancy is risking serious harms to her health that are not yet life threatening.

Though the issue was not explored deeply before the arguments, the question has long simmered in the background of the emergency abortion case: Can a woman who is pregnant receive an abortion at a hospital under the federal law by claiming a mental health illness, such as severe depression?

Conservatives are concerned about that possibility because they believe it would lead to more abortions.

US Solicitor General Elizabeth Prelogar, arguing for the Biden administration, said that the federal law itself would require hospitals to stabilize a pregnant patient with "grave mental health emergencies" but said that it wouldn't lead to abortions.

"Let me be very clear about our position," she said. "That could never lead to pregnancy termination because that is not the accepted standard of practice to treat" any mental health emergencies.

Anti-abortion activists and abortion rights advocates gathered outside the Supreme Court on Wednesday ahead of one of the most significant abortion cases since the high court overturned Roe v. Wade two years ago.

See photos from the scene:

Justice Samuel Alito questioned why the Justice Department believes it can impose restrictions on Idaho state law as it relates to hospital decisions.

US Solicitor General Elizabeth Prelogar said that because hospitals are accepting federal money for programs like Medicare, they have to abide by the federal rules.

In response, Alito asked how the argument squared with Congress’ Spending Clause power.

“The theory is, Congress can tell a state or any other entity or person, ‘Look, here is some money or other thing of value, and if you want to accept it, fine, then you have to accept certain conditions,'" he said.

“But," he continued, "How does the Congress’ ability to do that, authorize it to impose duties on another party that has not agreed to accept this money?”

With the first part of Idaho’s arguments wrapping it up, it appears that Justices John Roberts and Amy Coney Barrett, who are conservative, will be key votes in the case.

Justice Brett Kavanaugh, who sometimes sides with the liberals, has signaled skepticism of the Biden administration's arguments about the reach of the federal emergency care law.

Barrett, however, had several tough questions for Idaho attorney Joshua Turner and appeared to have some difficulties with how he described Idaho’s ban would apply in medical abortions.

Roberts had fewer questions during Turner’s presentation, but zeroed in on how the life-of-the-mother exemption in Idaho’s law operates and who decides whether a doctor had a “good faith” reason to perform abortion under it.