The Supreme Court heard heated arguments on Wednesday over whether states can criminalize life-saving, stabilizing abortion care in emergency medical situations.
The arguments, a consolidation of Idaho v. United States and Moyle v. United States, focused on Idaho’s near-total abortion ban, which first went into effect in August 2022. The justices debated whether the narrow exceptions in Idaho’s ban override federally mandated requirements for physicians under the Emergency Medical Treatment and Labor Act. EMTALA requires hospitals that participate in Medicare — the majority of hospitals in the country — to offer abortion care if it’s necessary to stabilize the health of a pregnant patient while they’re experiencing a medical emergency.
The arguments highlighted the debate happening across the country since the Dobbs decision repealed Roe v. Wade: Are post-Dobbs abortion bans operating smoothly, or have they turned reproductive health upside down, forcing physicians and patients into impossible, often deadly, situations?
The Supreme Court case focuses on one of the Idaho ban’s three narrowly defined exceptions: when an abortion is “necessary to prevent the death of the pregnant woman.”
Federal law states that physicians are legally required to offer abortion in that scenario, but Idaho’s law is so narrow that it only allows physicians to perform an abortion when death is imminent. Those added delays could leave patients with long-term health conditions such as uterine hemorrhage (requiring a hysterectomy) or kidney failure that requires lifelong dialysis — if the procedure is performed in time to save their lives in the first place.
The conservative justices on the court were very interested in focusing on everything but pregnant people and the issues Idaho’s abortion ban has created for physicians on the ground. Instead, Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh focused on the spending power of the federal government in these scenarios and the mental health exception for abortion care in emergency medical situations.
“Does the term health in EMTALA mean just physical health, or does it also include mental health?” Alito asked Solicitor General Elizabeth Prelogar, who presented arguments on behalf of the federal government. The question hints at one of the major arguments of the anti-abortion movement, which claims mental health exceptions are used as a loophole for women to get abortion care.
Prelogar said that “EMTALA could never require a pregnancy termination as the stabilizing care” for mental health emergencies because abortion was not the standard of care for medical health. She added that it would be “incredibly unethical” to terminate a pregnancy in that situation. Under EMTALA, a pregnant person needs to provide consent to receive an abortion in an emergency medical situation. In the situation Alito was describing, a woman would likely not be able to give consent, as Prelogar pointed out.
Justice Sonia Sotomayor focused on whether EMTALA, a federal regulation, preempts state law — a critical point that the court spent a large amount of time on. Under the Supremacy Clause of the Constitution, federal law by default overrides state law. But the Supreme Court’s Dobbs decision left regulation of abortion to the states.
“What you’re saying is that no state in the nation — and there are some right now that don’t even have that as an exception to their anti-abortion laws — is that there is no federal law on the book that prohibits any state from saying, ‘Even if a woman will die, you can’t perform an abortion,’” said Sotomayor, who listed off several real stories of women being turned away from hospital emergency rooms for not being close enough to death to require medical care under state abortion bans.
Josh Turner, Idaho’s chief of constitutional litigation and policy arguing on behalf of the state, said that EMTALA does not preempt state law, but federal law does not have a standard of care. When Sotomayor and Amy Coney Barrett pressed Turner on any guidance Idaho state law offers doctors in emergency abortion care settings and how much leeway they’re given, Turner said the decisions are “very case by case.”
“That’s the problem,” Sotomayor said.
“I’m kind of shocked, actually. Because I thought your own experts had said that these kinds of cases were covered, and you’re now saying you’re not?” Coney Barrett interjected. When Turner tried to respond, Coney Barrett said he was hedging over what type of care would be covered under Idaho law.
The justices also brought up the impacts of a potential ruling outside Idaho. States including Texas and South Dakota currently have near-total abortion bans in effect that have exceptions for the life of the pregnant person but not the health of the pregnant person — directly conflicting with EMTALA. There have been dozens of reports of pregnant women across the country — in Texas, Florida, Oklahoma and elsewhere — who were denied care because they weren’t close enough to death to require medical intervention.
Idaho has lost nearly a quarter of its OB-GYNs and 55% of its maternal-fetal health specialists. Three maternity wards have shut down, making the state one of the largest maternal health care deserts in the country. This is what will likely happen to other states with narrow abortion ban exceptions if the Supreme Court rules in favor of Idaho.
“Any decision that falls short of guaranteeing patients’ access to abortion care in emergencies — as has been law for nearly 40 years — would be catastrophic,” Alexis McGill Johnson, president of the Planned Parenthood Federation of America, said in a statement ahead of Wednesday’s arguments. “Unless the Supreme Court is willing to let pregnant people die or suffer grave health complications, it must ensure federal law continues to protect emergency abortion care.”
The Department of Justice sued Idaho when the abortion ban first went into effect in 2022 because the state law is in direct conflict with EMTALA. The case could have deadly consequences for people with the capacity for pregnancy, depending on what the court decides. A ruling in the case is expected sometime in June.