WASHINGTON (CN) — The women on the Supreme Court came out swinging against Idaho’s objection to emergency abortions on Wednesday while their male colleagues seemed undecided as to whether the state could shirk federally mandated medical care.
“She’s going to lose her reproductive organs,” Justice Elena Kagan, a Barack Obama appointee, said during arguments. “She’s going to lose the ability to have children in the future unless an abortion takes place. That’s the category of cases where EMTALA says, my gosh, of course, the abortion is necessary.”
The Emergency Medical Treatment and Labor Act requires that any patient who walks into a federally funded hospital is guaranteed emergency care.
The Biden administration sued Idaho claiming the Defense of Life Act — which makes an exception only for abortions to prevent the death of a pregnant person — cuts off pregnant women's access to treatments that prevent non-life-threatening detriments to their health.
Kagan said Idaho’s theory that state law trumped the federal mandate could result in states providing no abortion exceptions.
“Your theory of EMTALA is that EMTALA preempts none of it?” Kagan asked Idaho. “That a state tomorrow could say even if death is around the corner, a state tomorrow could say even if there's an ectopic pregnancy, that’s a choice of the state, and EMTALA has nothing to say about that?"
Attorneys for Idaho called that understanding a humble one that allows states to be their residents' primary care providers.
“It may be too humble for women’s health,” Kagan responded.
Justice Sonia Sotomayor listed scenarios where pregnant people are not at risk of dying if they don’t receive an abortion but could face serious health conditions.
Someone who came into an emergency room at 16 weeks pregnant with a preterm amniotic sac rupture, Sotomayor said, could develop sepsis or uncontrolled hemorrhage if not given an abortion. The Obama appointee said her example came from a woman in Florida who a hospital refused to treat. The woman was only allowed to get an abortion days later when she was closer to death.
“The doctors there refused to treat her because they couldn’t say she was going to die,” she said.
Sotomayor said Idaho had significantly changed the care pregnant individuals could receive when enacting its law, noting that there was significant daylight between preventing death and preventing serious harm to a woman’s health.
Idaho attorneys could not clearly answer whether the state would provide emergency care under the circumstances described by Sotomayor, suggesting a case-by-case determination.
Justice Amy Coney Barrett, a Donald Trump appointee, said she was shocked by that admission since the state legislature had said those cases would be covered under the abortion exception.
Barrett said even if Idaho agreed that those cases were covered, it’s not clear hospitals were operating under that assumption.
“If they reached the conclusion that Idaho’s doctors did, would they be prosecuted under Idaho law,” Barrett asked.
The state said those cases wouldn’t be prosecuted but hedged in saying prosecutors have discretion to bring cases they thought appropriate under the law.
Justice Ketanji Brown Jackson, a Biden appointee, said if it were true that Idaho allowed abortions in cases that threatened the health of a pregnant person, then the state would be in compliance with the federal protections and there would be no conflict. Jackson noted that amicus briefs submitted in the case contradicted that notion.
The government also refuted Idaho’s claim when probed by Jackson. U.S. Solicitor General Elizabeth Prelogar said doctors in Idaho “have to shut their eyes to everything but death.”
“Women in Idaho today are not getting treatment,” Prelogar said. “They are getting airlifted out of the state to Salt Lake City and neighboring states where there are health exceptions in their laws because the doctors are facing mandatory minimum two years in prison, loss of their [medical] license and criminal prosecution.”
Justice Brett Kavanaugh, a Donald Trump appointee, also appeared to think there was no conflict between the federal mandate and Idaho’s law if the state was providing care in the cases Sotomayor cited.
Chief Justice John Roberts, a George W. Bush appointee, was concerned about doctors who morally objected to providing abortions. He asked if a hospital would still be obligated to provide emergency abortions if all its doctors objected to the procedure.
“Does that mean that there must be somebody in the emergency room that can provide an abortion?” Roberts asked.
The Biden administration said conscience objections would override the federal emergency care mandate. However, Prelogar said hospitals typically account for doctors’ objections so that scenario does not arise.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all seemed to favor Idaho’s arguments, taking issue with the Biden administration’s idea that the federal government had authority over state criminal law because of its monetary contributions to the hospitals.
Thomas, a George H.W. Bush appointee, was concerned about the Biden administration suing Idaho instead of a regulated party like a specific hospital. Gorsuch, a Donald Trump appointee, suggested that would allow administrations to regulate state medical practice through the spending clause.
“Congress could prohibit gender reassignment surgeries across the nation, it could ban abortion across the nation, through the use of its spending clause authority,” Gorsuch asked.
Alito, a George W. Bush appointee, was more concerned with the rights of fetuses. He suggested that the federal statute protected fetuses so there was no possibility that it could also compel states to carry out abortions.
“Have you seen abortion statutes that use the phrase ‘unborn child,’” Alito asked. “Doesn’t that tell us something?”
Idaho argued that federal law only required hospitals to provide available emergency care to all patients and abortions are not available in the state.
“The text qualifies EMTALA's stabilization requirement by the staff that is available,” said Joshua Turner, Idaho’s chief of constitutional litigation and policy. “We know nurses can't perform open heart surgery and we know janitors can't draw blood.”
The justices will issue a ruling by the end of June.
Follow @KelseyReichmann
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