The Supreme Court will hear oral arguments on Wednesday in a dispute between the state of Idaho and the Biden administration over whether state bans on abortion violate federal emergency medicine statutes, a case that could reshape abortion laws across the country.
The case will determine whether Idaho’s strict abortion ban violates the Emergency Medical Treatment and Active Labor Act, a federal statute that requires hospitals to provide “necessary stabilizing treatment” to all patients.
The Biden administration is set to argue that Idaho’s ban runs afoul of the law on the grounds that some abortions constitute stabilizing treatments. It sued Idaho shortly after the court overturned federal protections for abortion in Dobbs v. Jackson Women’s Health Organization in June 2022.
The Supreme Court agreed in January to adjudicate the case and temporarily lifted the injunction placed on the state’s abortion law by the U.S. Court of Appeals for the 9th Circuit, allowing it to take effect until oral arguments were heard.
If the court assents to the Department of Health and Human Services’s interpretation of EMTALA, the laws of 14 other states that have prohibited abortion at all 40 weeks of pregnancy could be in jeopardy, a decisive blow to anti-abortion advocates ahead of the 2024 elections in November.
“The Biden administration has this unhealthy obsession with abortion and pushing it in every way that they can through their administration outside of Congress,” said Kelsey Pritchard, the SBA Pro-Life America director of state public affairs. “The EMTALA case is just a reminder to all of us how much is at stake and the November election and just how pro-abortion this administration is.”
Passed in 1986, EMTALA requires hospitals that receive Medicare funds to provide all patients “medical screening, examination, stabilizing treatment, and transfer if necessary,” according to a letter sent by HHS Secretary Xavier Becerra to healthcare providers in 2022 following the Dobbs decision.
At that time, Becerra instructed physicians that they “must provide” an abortion under emergency medical conditions if it is “the stabilizing treatment necessary to resolve that condition,” irrespective of state laws prohibiting the procedure.
“For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy,” Justice Department lawyers wrote in a brief to the court. “In those circumstances, EMTALA requires participating hospitals to offer such care — yet Idaho law forbids it.”
Anti-abortion advocates, however, highlight that EMTALA statute refers to the “unborn child” four times as a patient equally deserving of stabilization in a medical emergency.
Idaho Attorney General Raul Labrador previously told the Washington Examiner ahead of the case that he believes “the Biden administration is completely misconstruing and misreading the statute.”
“The Biden administration decided to be creative with a law that has never been interpreted this way, and eventually, it’s going to harm women and children,” Labrador said. “Both Idaho law and EMTALA, their mission and their goal is to protect the lives of pregnant women and the lives of unborn children.”
Since the overturning of Roe v. Wade, significant controversy has arisen over when and how doctors can intervene in medical emergencies during pregnancy, resulting in an increase in reports of women experiencing severe complications without assistance or being denied care.
OB-GYN Ingrid Skop of the anti-abortion Charlotte Lozier Institute told reporters before the oral arguments that there ought to be no confusion among medical professionals.
“All states allow doctors to use their reasonable or good faith medical judgment to determine when to intervene in an emergency,” Skop said. “Obstetricians know which complications can threaten a woman’s life, and they know when to intervene.”
Idaho’s brief highlights that state law carves out several emergency circumstances in which a physician may need to remove what is medically called the “retained products of conception” from a woman without violating the state’s prohibition on voluntarily ending the life of an unborn child in an abortion.
“Removing the remains of a dead, unborn child or removing an ectopic or molar pregnancy is not an ‘abortion,’” Idaho lawyers said in its brief to the court. “EMTALA does not mandate abortions in cases where the [Idaho abortion law] prohibits them.”
“I have practiced under EMTALA my entire career,” said Skop, who practices in Texas. “It has never been confusing to me or to any other physician I’ve worked with who knows the purpose of the law is to protect the health of mothers and their unborn children.”
The conservative majority on the court may be interested in the role of religious liberty protections under EMTALA, asking whether or not the Biden administration respects the conscience rights of healthcare providers in refusing to perform abortions.
In January, the U.S. Court of Appeals for the 5th Circuit upheld the decision of a lower court in a case filed against the Biden administration from the American Association of Pro-Life Obstetricians and Gynecologists and the state of Texas, arguing that EMTALA cannot be used to force physicians who have a moral objection to abortion to perform the procedure even under emergency circumstances.
Although the Idaho case does not explicitly deal with conscience objections, the Biden administration may attempt to present a compromise to the court to use religious liberty as a path for exceptions for objecting physicians while still keeping its broad interpretation of abortion rights under EMTALA.
Katie Daniel, the SBA Pro-Life America state policy director, told the Washington Examiner prior to oral arguments that doing so would sidestep the fundamental problem of HHS’s erroneous reading of abortion into EMTALA.
“The Department of Justice is hoping they can get the court to carve out a conscience right and not addressed the overall issue here, which is that Joe Biden’s HHS is trying to rewrite federal law without going through Congress, without going through rulemaking, so that it can override a state’s pro-life law that is absolutely not in conflict with EMTALA, as it is written,” Daniel said.
According to Idaho’s brief, the Trump administration issued regulations protecting the conscience rights of healthcare providers under EMTALA that were subsequently rolled back by Biden’s HHS. The court previously upheld conscience rights for physicians in the 2008 case California v. United States, allowing doctors to refrain from performing abortions despite EMTALA.
Last month, the court also heard oral arguments in another Dobbs-era controversy regarding the Food and Drug Administration’s approval of the abortion pill mifepristone. Justices in that case were particularly concerned with whether the conscience rights of anti-abortion physicians were violated by treating patients with self-administered abortion complications due to taking mifepristone.
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During oral arguments in the mifepristone case, Solicitor General Elizabeth Prelogar said that the federal government could not supersede a physician’s right to object to performing an abortion, even under emergency circumstances.
The court is expected to hand down decisions for both the EMTALA and mifepristone abortion cases in June.