Supreme Court justices appear split over whether to protect abortion care during emergencies

U.S. Supreme Court justices spent two hours Wednesday morning debating whether a federal law about emergency treatment encompasses abortion care even in states with strict abortion bans, with no clear indication of how they may ultimately rule.

A decision could come as soon as the end of June whether Idaho’s near-total abortion ban means doctors who might need to terminate a pregnancy during a health emergency would be protected from prosecution under the Emergency Medical Treatment and Labor Act, or EMTALA, a federal law that requires hospitals to treat patients who come to an emergency room regardless of their ability to pay. That includes treatment to prevent serious damage to bodily functions.

If the court decides the law does not provide that protection, then hospitals and doctors in Idaho have said they will have to continue transferring patients out of state for that treatment. Since January, when the court decided to take the case and struck down an injunction that provided protection under EMTALA, transfers out of state for pregnancy complications that may require termination increased from one in 2023 to six over the course of four months.

The court’s liberal wing — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — ​​questioned Idaho Deputy Attorney General Josh Turner about what EMTALA explicitly says about stabilizing treatment and whether abortion procedures fall into that definition when complications occur before a fetus can survive outside of the womb.

Turner argued that Idaho’s law should supersede federal law in the case of abortion procedures, even if it goes against commonly accepted medical care standards.

Sotomayor rejected that argument.

“There is no state licensing law that would permit the state to say, ‘Don’t treat diabetics with insulin. Treat them only with pills,’” Sotomayor said. “Federal law would say you can’t do that.”

She said federal law requires treatment of a person who is at risk of serious medical complications without that treatment, but Idaho’s law does not provide that much leeway.

“Idaho law says the doctor has to determine not that there’s really a serious medical condition, but that the person will die. That’s a huge difference, counsel,” she said.

Idaho’s abortion ban went into effect in August 2022, a few months after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade, ending federal protection for abortion access and allowing states to regulate it instead. Providers who are prosecuted for performing an abortion are subject to two to five years in prison plus the loss of their medical license, and they are also subject to civil enforcement laws by any family members related to the person who had the abortion.

Doctors are subject to prosecutorial discretion in Idaho, deputy AG says

The justices repeatedly asked Turner to identify situations where a doctor might provide an abortion as part of stabilizing care and it would not be allowed under Idaho law. He continued to point to the state’s exception to save a patient’s life and referred to a doctor’s “good faith medical judgment” being enough to avoid prosecution.

The government listed nine emergency medical conditions where termination of the pregnancy may be the recommended treatment to stabilize a patient’s condition, including when the water breaks before a fetus is viable or when a patient experiences uncontrolled high blood pressure or bleeding. Idaho doctors identified one recent “traumatic” case when a patient had to wait until advanced infection set in before the doctor felt secure enough to end the pregnancy. Others are sending patients out of state as soon as termination might be needed to avoid having to wait until they meet qualifications under Idaho’s exception to prevent death.

Justice Amy Coney Barrett, considered one of the court’s more conservative members, said Turner was hedging in his answers and asked what happens if another doctor or prosecutor reaches a contrary conclusion about what the appropriate medical treatment should have been.

“That, your honor, is the nature of prosecutorial discretion,” Turner said.

Barrett also asked if Idaho had released any legal guidance about its abortion laws, the way a federal health agency might issue guidance. Turner said the “guiding star” is the Idaho Supreme Court’s opinion from August 2022 interpreting the abortion statute, where it said the law does not require imminence of death or medical certainty for a physician to intervene. The Idaho court also said another doctor’s opinion would only be considered if they accused the doctor who performed the abortion of acting in bad faith.

U.S. Solicitor General Elizabeth Prelogar said for those reasons, women in Idaho are not getting the treatment they need, often in already-tragic situations where a wanted pregnancy is lost because of complications.

“They are getting airlifted to Salt Lake City and to neighboring states where there are health exceptions in their laws,” she said. “The doctors can’t provide the care until they can conclude that a prosecutor looking over their shoulder won’t second guess that maybe it wasn’t really necessary to prevent death.”

Conservatives ask about conscience objections, expansion of ‘emergency’ definition

The more conservative justices offered mixed questions to Prelogar, who argued on behalf of the government. Justice Neil Gorsuch posed questions related to the federal Supremacy Clause about when federal law can override state law in the context of medicine, while Barrett asked whether conscience exceptions exist for doctors who don’t feel comfortable terminating a pregnancy even in emergency situations. Or if a hospital did not want to provide the procedure, such as a Catholic hospital, would be exempt under EMTALA for conscience reasons. One of Idaho’s largest hospital systems, Saint Alphonsus, is a Catholic hospital.

Prelogar confirmed that yes, individual doctors and entire medical entities qualify for those conscience objections and are therefore not required to perform an abortion under EMTALA. But at a hospital that did not have a blanket objection, they would take individual objections into consideration for appropriate staffing so that there is always someone available to provide that care if necessary.

“If the question is, could you force an individual doctor to step in over a conscience objection, the answer is no, and I want to be really clear about that,” Prelogar said.

Justice Sam Alito also asked Prelogar if EMTALA could be understood to apply to other emergency situations such as a mental health emergency, if someone was expressing suicidal thoughts and wanted to end their pregnancy to resolve those thoughts. Idaho’s legal representation, conservative religious law firm Alliance Defending Freedom, argued in its brief to the court that a ruling in favor of EMTALA protection would allow such situations to occur. Prelogar said no, the proper treatment would be to administer medications to alleviate the suicidal thoughts.

“There can be grave mental health emergencies, but EMTALA could never require pregnancy termination as the stabilizing care … because that wouldn’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place,” Prelogar said. “If she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. She might not be in a position to give any informed consent.”

Demonstrators, legislators from Idaho comment on court case

Hundreds of abortion rights advocates, medical professionals and two Idaho legislators gathered outside the U.S. Supreme Court building in Washington, D.C., on Wednesday morning before the arguments advocating for the court to uphold EMTALA as a guiding principle regardless of state abortion laws. On the anti-abortion rights side, Idaho-based crisis pregnancy center Stanton Healthcare argued the case was about forcing states with abortion bans to perform them. Danielle Versluys, the organization’s chief operating officer, said women with complications should deliver a baby naturally, regardless of the circumstances.

“The outcome is the same — a dead baby — but the difference is one is natural, and the other is not,” she said. “And one allows the woman the natural process to give birth and to grieve, and the other one is unnatural.”

Rep. Ilana Rubel, a Democrat and the legislature’s minority leader, told States Newsroom the case is a waste of state taxpayer dollars.

“It is, frankly, stunning that leaders in our state think that this is something they want so badly they were willing to take it to the Supreme Court to deprive women of appropriate care in medical emergencies,” Rubel said. And with the Idaho Legislature adjourned for the year, she added, “If the Supreme Court does not give us EMTALA back, there will be no lifeline for women at least until 2025.”

States Newsroom reproductive rights reporter Sofia Resnick contributed to this report.