WASHINGTON — The Supreme Court appeared divided Wednesday as it grappled with whether provisions of Idaho's near-total abortion ban unlawfully conflict with a federal law aimed at ensuring certain standards for emergency medical care for patients, including pregnant women.
Some conservative justices, who have a 6-3 majority, appeared skeptical about the Biden administration’s lawsuit arguing that the state ban restricts potentially lifesaving treatment for women suffering complications during pregnancy.
Liberal members of the court appeared to back the administration's position.
The justices are weighing an appeal brought by Idaho officials who are contesting a lawsuit the Biden administration filed over abortion access in emergency situations.
The state abortion law was enacted in 2020, with a provision stating it would go into effect if the Supreme Court overturned Roe v. Wade, the 1973 ruling that found women had a constitutional right to abortion.
The 2020 law, called the Defense of Life Act, went into effect in 2022 when the Supreme Court rolled back Roe.
The state law says anyone who performs an abortion is subject to criminal penalties, including up to five years in prison. Health care professionals found to have violated the law can lose their professional licenses.
The federal government sued, leading a federal judge in August 2022 to block the state from enforcing provisions concerning medical care that is required under the federal Emergency Medical Treatment and Labor Act, or EMTALA.
The federal law, enacted in 1986, requires that patients receive appropriate emergency room care. The Biden administration argues that care should include abortions in certain situations. The law applies to any hospital that receives federal funding under the Medicare program.
There is an exception to the Idaho law if an abortion is necessary to protect the life of the pregnant woman, although the scope of the exception came under close scrutiny during the oral argument.
Idaho’s lawyer, Joshua Turner, faced tough questioning about whether the exception can also apply to a situation in which a woman has complications that pose a substantial health risk but not imminent death.
Liberal Justice Elena Kagan said federal law says “that you don’t have to wait until the person is on the verge of death.”
“If the woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient,” she said.
Fellow liberal Justice Sonia Sotomayor asked similar questions, providing several examples of real-life situations in which women have faced emergency situations when doctors had to make calls about whether to authorize abortions, including a situation in which a patient at 16 weeks of pregnancy whose water broke was at risk of sepsis or a hemorrhage after she was refused an abortion in Florida.
"Is that a case in which Idaho the day before would have said it's OK to have an abortion?" Sotomayor asked.
Turner argued that such medical decisions are “subjective” and that a doctor’s judgment in such instances would be based on good faith, not an objective standard.
Justices Amy Coney Barrett and Brett Kavanaugh, both conservatives, indicated they saw Idaho’s law as allowing for treatment similar to what the Biden administration says the federal law requires, suggesting that there may not be any conflict.
At one point Barrett said she was "shocked" at Turner's answers to questions about what kind of treatment was allowed, because "I thought your own expert had said below that these kinds of cases were covered."
Kavanaugh likewise questioned the daylight between the two laws, wondering what the implications are if "Idaho law allows an abortion in each of the emergency circumstances that is identified by the government."
"What does that mean for what we're deciding here?" he asked Turner.
Conservative Justice Samuel Alito seemed most skeptical of the federal government's argument, at one point mentioning language in the federal law referring to treatment for an "unborn child," a term more commonly used by anti-abortion advocates.
"Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions?" Alito asked Solicitor General Elizabeth Prelogar.
"Have you seen abortion statutes that use the phrase 'unborn child'? Doesn't that tell us something?"
Prelogar responded that the phrase did not displace the requirement that women get the treatment they need in emergency situations.
Conservative justices, including Neil Gorsuch, also questioned whether the federal government even has the power to mandate health standards when they are tied to Medicare funding.
In January, the Supreme Court allowed Idaho to enforce the provisions while also agreeing to hear oral arguments in the case. Other provisions of the ban are already in effect and will not be affected by how the justices rule.
The decision will affect not just Idaho but also other states, including Texas, that have enacted similar abortion bans that abortion-rights advocates say clash with the federal law.
In blocking parts of the state law that conflict with federal law, U.S. District Court Judge B. Lynn Winmill described the state’s actions as putting doctors in a difficult situation.
“The doctor believes her EMTALA obligations require her to offer that abortion right now. But she also knows that all abortions are banned in Idaho. She thus finds herself on the horns of a dilemma. Which law should she violate?” he wrote.
The San Francisco-based 9th U.S. Circuit Court of Appeals briefly put Winmill’s ruling on hold in September, but it subsequently allowed it to go back into effect, prompting the state officials to turn to the Supreme Court.
Prelogar wrote in court papers that EMTALA requires "necessary stabilizing treatment," which in cases involving pregnant women in emergency situations may require abortions.
"And in those limited but critically important circumstances EMTALA requires the hospital to offer that care," she added.
The state argues that it was only after Roe was overturned that the Biden administration said EMTALA could be interpreted to require abortions in some contexts, calling it a "nationwide abortion mandate."
EMTALA "merely prohibits emergency rooms from turning away indigent patients with serious medical conditions," Idaho Attorney General Raúl Labrador wrote in court papers. The law was not intended to override state laws regulating health care, he added.
The Idaho dispute is one of two abortion cases now pending at the Supreme Court, both of which arose in the aftermath of the 2022 decision to overturn Roe v. Wade. In the other case, the court is considering a challenge that could restrict access to mifepristone, the drug most commonly used for medication abortions.
