Washington — The U.S. Supreme Court on Wednesday held its first hearing on state abortion restrictions that have been enacted since the court upheld the constitutional right to abortion in Roe v. Wade. While the current case involves the Idaho abortion ban, the court's decision could have implications beyond that state.
Idaho lawmakers have banned abortion except when the mother's life is in danger. The Biden administration says the state law conflicts with a federal law that requires emergency room doctors to stabilize patients no matter what, even if it means abortion.
How the court will rule is uncertain. The judge could hand down a major ruling — or they could rule narrowly on how Idaho's state law interacts with the federal law, the Emergency Medical Treatment and Active Labor Act (EMTALA).
A look at the key points of Wednesday's arguments.
Lawyers on both sides warned that the judges' decision could affect women and doctors far beyond just Idaho, changing the way emergency rooms in many other states treat patients.
“22 states have abortion laws,” said attorney Joshua N. Turner, who represents Idaho. “This is not going to end with Idaho. …This question will continue to arise in one state after another.”
Solicitor General Elizabeth Preloger, arguing for the Biden administration, cautioned that other states could pass laws limiting the way emergency rooms can provide other services, which could lead to more patients having to go to the hospital.
He warned, “This effectively allows states to take away any specialty treatment they don't want their hospitals to provide and throw those patients out of the state.” “And you can imagine what would happen if every state started adopting this approach.”
Medical “what-ifs” fuel the arguments, which sometimes get personal: What if a woman's waters break early in pregnancy, putting her at risk of serious infection by the time the fetus is outside the womb? Can't survive? What if continuing the pregnancy causes organ damage to the pregnant person, or results in permanent infertility?
Turner, of Idaho, told the court that these would be “case by case” situations – a response that “surprised” Justice Amy Coney Barrett.
Barrett, one of the conservatives who voted to overturn Roe v. Wade, pressed Turner on when a prosecutor can bring charges against a doctor for performing an abortion. Barrett said the experts cited by Turner had told the court that doctors performing abortions in those cases would be protected.
Turner agreed and said that doctors in Idaho could use their “good faith,” medical judgment but Barrett put further pressure on them.
“What if the prosecutor thought differently?” Barrett asked. “What if the prosecutor thought, well, I don't think any good-faith doctor could come to that conclusion.”
Justice Sonia Sotomayor, of the court's liberal minority, asked Turner to consider whether federal law requires hospitals to treat patients for more common medical emergencies, such as diabetes they have had since childhood. .
What if, she said, the state banned treating diabetes with insulin?
“Federal law will say you can't do that,” Sotomayor said. “Clinically accepted objective standards of care require the treatment of diabetic patients with insulin. 'Idaho is saying that unless a doctor can say that the person is likely to die as opposed to having a serious illness, they can't perform an abortion.'
Conservative Justice Samuel Alito was particularly concerned by Idaho's argument that emergency rooms could be forced to perform an abortion if a pregnant patient in mental distress sought one. The state has raised this only as a hypothetical, and has not given any actual example of a doctor being in this position.
“Does health mean only physical health or does it also mean mental health?” Alito asked the prelogger, noting that if an incident were to occur in the future he was trying to get her on the record about it.
Preloger said the administration does not consider abortion to be provided as emergency medical care if a woman is suicidal or depressed. He said the hospital would have to find other ways to deal with the mental health issues of such patients.
“This should never lead to a pregnancy termination because it is not an accepted standard of practice for treating any mental health emergency,” Preloger said.
In 1986, Congress passed its own federal law mandating that patients be stabilized or treated in emergency rooms after reports that private hospitals were treating patients—many of whom were without health insurance and in poor condition— – Sending to public hospitals.
Nearly 40 years later, lawyers and judges spent some time Wednesday considering why Congress created this law.
Justice Brett Kavanaugh pressed Preloger on why the law was initially created. Idaho officials have argued that the purpose of the law was to ensure that patients without health insurance are treated, and that it should not be used as a way for the federal government to police who doctors treat in an emergency. Abortion or not.
“The text of the statute says in no uncertain terms, here's the fundamental guarantee: If you have an emergency medical condition and you go to the ER in this country, they have to stabilize you,” Preloger said.
But Turner posed another puzzle to the court about Congress's intent: why would doctors be required to perform abortions when the text of the law calls for them to treat “unborn children.”
He told the court, “It would be strange for Congress to have respect for the unborn child and yet order the termination of unborn children.”
It's not clear exactly where the Supreme Court will land, but the court previously allowed Idaho's abortion ban to be fully implemented while the litigation continues.
That means at least five members of the court voted to block a lower court's ruling that federal law preempts Idaho's abortion ban in medical emergencies. So the Biden administration was facing a difficult path in convincing the court to uphold that decision.
Six conservative justices have cast votes to limit abortion access, five of whom voted to overturn Roe v. Wade less than two years ago.
It seemed likely that Justices Neil Gorsuch, Clarence Thomas and Alito would side with Idaho on Wednesday. The liberal judge, Ketanji Brown, was the most favorable to the Jackson, Kagan and Sotomayor administrations.
The outcome will likely depend on the votes of the court's other three members — Chief Justice John Roberts and Barrett and Kavanaugh.
Barrett and Kavanaugh voted to overturn Roe.
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Boone reported from Boise, Idaho.
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