Supreme Court hears case about emergency abortion care

Conservative Justice Amy Coney Barrett pushed Idaho attorney Joshua Turner over when doctors could be criminally prosecuted for performing an abortion under the state law.

Joining the liberal justices in their forceful questioning of Turner, Barrett asked what happens if a doctor “reached the conclusion” in good faith that an abortion was medically necessary, but prosecutors disagreed.

“What if the prosecutor thought well, 'I don’t think any good faith doctor could draw that conclusion. I’m going to put on my expert,'” Barrett said.

“That, your honor, is the nature of prosecutorial discretion and it may result in a case,” Turner responded.

Remember: Barrett was one of the five justices who voted in 2022 to overturn Roe v. Wade.

Justice Sonia Sotomayor pushed Idaho's attorney on when federal law supersedes state law as it comes to emergency medical care.

“The whole purpose of preemption is to say that if the state passes a law that violates federal law, the state law is no longer effective,” Sotomayor said.

In a personal and pointed question, Sotomayor reframed the abortion disagreement to discuss a condition that she has: type 1 diabetes.

She challenged Idaho attorney Joshua Turner to imagine a situation in which a state law required a hospital to treat a diabetic person with only pills and not insulin.

“Federal law would say you can’t do that,” she said. “Medically accepted objective standards of care require the treatment of diabetics with insulin.”

“If objective medical care requires you to treat women ... who present the potential of serious medical complications, and the abortion is the only thing that can prevent that, you have to do it,” she said. “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.”

Justice Elena Kagan leaned into the lawyer representing Idaho about whether the medical community has agreed that the appropriate standard care in some emergency circumstances is an abortion. Why, the liberal justice was essentially asking, can the federal government not require doctors in Idaho to meet that standard.

“Do you concede that with respect to certain medical conditions, an abortion is the standard of care?” Kagan asked the attorney, Joshua Turner.

“No,” Turner responded.

“In Idaho, there's a life-saving exception for certain abortions,” Turner added. “And that is the standard of care, and the standard of care is necessarily set and determined by the state.”

But if the state concedes that medical standards can require an abortion to save the life of a mother, Kagan continued to ask, why can’t those standards also require an abortion in cases where a pregnant woman’s health is at stake?

Justice Sonia Sotomayor said that under Idaho’s arguments about the reach of the federal emergency care law, a state could ban abortion even in situations where a woman would die.

Turner responded that he was aware of no state that lacks a life-of-the-mother exemption to its abortion ban.

Sotomayor jumped in, asserting that some states have been “debating” it.

Two of the court’s liberal justices – Elena Kagan and Ketanji Brown Jackson – quickly pushed back on a central argument raised by Idaho: That the federal law in question doesn’t conflict with Idaho’s strict abortion ban.

Kagan, in particular, rejected the idea that the federal law doesn’t require something from the state’s hospitals. It requires, Kagan said, hospitals to stabilize patients that arrive in emergency situations.

The Emergency Medical Treatment and Active Labor Act, also known as EMTALA, on its face, Kagan said, means that the regulation of medicine isn’t “all the state’s way.” If the state must concede that point, Kagan is arguing, then it must also concede that EMTALA may require abortions in medical emergencies.

The liberal justices are trying to make sure the arguments are framed in a way to keep the conservative majority from siding with Idaho.

Justice Clarence Thomas posed the first question during today's arguments, which has become a common occurrence since Covid-19 forced the court to conduct arguments remotely for more than a year.

The conservative stalwart asked the attorney representing Idaho a friendly question on what entity, precisely, the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, regulates — the doctors or hospitals.

Idaho’s attorney responded that hospital and doctors are the party being regulated.

Joshua Turner, arguing on behalf of Idaho, told the Supreme Court in opening remarks Wednesday that nothing in the Emergency Medical Treatment and Labor Act preempts the state’s traditional power to regulate medicine.

The administration’s reading, Turner said, is “wholly untenable.”

“Licensing laws limit medical practice, that’s why a nurse isn’t able to perform open heart surgery,” he said. “The answer doesn’t change just because we’re talking about abortion.”

A law called the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, is at the heart of a Supreme Court case that is before justices on Wednesday. It became law in 1986 after studies showed that many hospitals were trying to save money by engaging in “patient dumping” or transferring a patient — often uninsured or a member of a minority community — to a public hospital without first providing appropriate care to stabilize them. 

A study at Cook County Hospital at the time the law passed found that “dumped” patients were twice as likely to die as those who were treated at the hospital where they initially sought care. About a quarter of patients were transferred in what was considered an unstable condition. 

EMTALA required all US hospitals that received Medicare money — essentially nearly all of them — to screen everyone who came to their emergency rooms to determine whether the person had an emergency medical condition. The law then requires hospitals, to the best of their ability, to stabilize anyone with an emergency medical condition or transfer them to another facility that has that capacity. The hospitals must also treat these patients “until the emergency medical condition is resolved or stabilized.” 

Why this matters to the Idaho case: In 1989, after reports that some hospitals were refusing to care for uninsured women in labor, Congress expanded EMTALA to specifically say how it included people who were pregnant and having contractions. In 2021, the Biden administration released the Reinforcement of EMTALA Obligation, which says the doctor’s duty to provide stabilizing treatment “preempts any directly conflicting state law or mandated that might otherwise prohibit or prevent such treatment” although it did not specify whether an abortion has to be provided.

In July 2022, the Biden administration’s guidance clarified that EMTALA includes the need to perform stabilization abortion care if it is medically necessary to treat an emergency medical condition.

Here's a look at where abortion access stands in Idaho and across other states:

The Supreme Court’s arguments in what has the potential to be the most significant abortion case since the high court overturned Roe v. Wade two years ago are now underway.

First up is Josh Turner, the chief of constitutional litigation and policy of the Idaho attorney general’s office.

Turner is expected to argue that the federal government cannot supplant the state’s strict ban on abortion by relying on a Reagan-era federal law that requires hospitals to “stabilize” patients who need emergency care.