Justice Alito Voices Support for Fetal Rights in Federal Law

Supreme Court Justice Samuel Alito seemed to fully endorse the argument that fetuses have full rights as people, at least under one federal law.

During arguments Wednesday in a case that pits Idaho’s near-total ban on abortion against a federal law that requires hospitals to provide emergency health care, the conservative justice zeroed in on the statute’s reference to “unborn child” and, as he put it, their “potential interests.”

“It seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child but performing abortion is antithetical to that duty,” Alito said of the Emergency Medical Treatment and Labor Act (EMTALA).

The law requires hospitals that participate in Medicare to offer stabilizing treatment to patients with emergency medical conditions regardless of their ability to pay for that care. The federal government says Idaho’s ban on abortion conflicts with that mandate because it stops hospitals from providing the procedure when it’s necessary to prevent serious risks to the mother’s health.

Abortion rights advocates were concerned ahead of arguments that the case might be used to advance the fight for fetal rights. Idaho argues there’s no conflict between its law and EMTALA in part because EMTALA’s text demands equal treatment for the life of the pregnant patient and “the unborn child.”

Alito seemed to agree in a line of questioning that one abortion rights advocate called “infuriating.”

“This case and these questions are about that life and death, and to talk about the rights of an unborn child when the actual person is dying in an emergency room parking lot is a little obscene,” said Karen Thompson, legal director at Pregnancy Justice, a nonprofit legal advocacy group that defends the civil and human rights of pregnant people.

High Tension

Alito repeatedly referred to EMTALA as an abortion statute and said its provisions seem to impose an equal duty on the hospital to both the woman and the child.

Solicitor General Elizabeth Prelogar forcefully pushed back.

“The statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger, when her health is in danger,” Prelogar said. “That stabilization obligation equally runs to her and makes clear the hospital has to give her necessary stabilizing treatment.”

Sara Rosenbaum, an emeritus health law professor at George Washington University, said the “unborn child” language was added to EMTALA to deal with labor and delivery situations when a baby could survive outside the womb.

“This is not some sort of abstract concern for embryos, but he’s dead set on finding it’s a statute aimed at protecting lives not yet in being,” she said, referring to Alito’s remarks.

But anti-abortion advocates say Alito was simply pointing out that Congress defined the patient who needs care to include the unborn child as well as the mother.

What was extraordinary about Alito’s exchange with Prelogar was that she used the phrase “unborn child” and recognized this is a human being, said John Bursch, senior counsel and vice president of appellate advocacy at Alliance Defending Freedom, a Christian nonprofit legal advocacy group.

“The other thing is she resisted the natural reading of that language and said even when the unborn child is viable, they don’t have any statutory coverage,” he said. “It’s all about the mom and what she wants to do.”

Alito wasn’t the only justice to ask about the “unborn child” language in the law. Justice Neil Gorsuch wanted to know what to do with EMTALA’s definition of “individual” to include both the woman and, as the statute says, the unborn child.

Idaho’s attorney Joshua Turner said the state isn’t arguing that EMTALA prohibits abortions.

But, “it would be a very strange thing for Congress to expressly amend EMTALA to require care for unborn children” and “yet also be mandating termination of unborn children,” he said.

Though some argue the case could set a foundation for fetal rights, Bursch said that’s a “different kettle of fish.”

The fetal personhood concept arises out of the Fourteenth Amendment of the Constitution, “not out of any statute that defines who is protected in a given situation.”

Tensions ran high during the two hour arguments with the women on the bench pressing Turner on what emergency situations would allow a doctor to perform an abortion without being prosecuted under Idaho’s law.

Justice Amy Coney Barrett said she was “kind of shocked” to hear Turner say some of the emergency situations the state’s own expert said would allow for an abortion won’t actually be allowed, situations where the mother could suffer serious health risks but she’s not in immediate danger of dying. Turner said that’s not what he was saying.

“Well, you’re hedging,” she said.

What struck everyone most from arguments, Rosenbaum said was the “level of rage” on the part of the four female justices and Prelogar’s “rage” at Alito’s question “suggesting somehow women are subordinated to nonviable fetuses.”

“You could hear in her voice,” she said. “She was just reflecting what women feel.”

— With assistance from Kimberly Robinson.