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Spokane, Washington  Est. May 19, 1883

Supreme Court hears case that pits Idaho abortion ban against federal protections for pregnant women

An anti-abortion protester stands in front of the Supreme Court on Wednesday before the court heard oral arguments in Idaho v. United States and Moyle v. United States.  (Orion Donovan Smith/The Spokesman-Review)

WASHINGTON – The Supreme Court on Wednesday considered whether Idaho’s near-total ban on abortion violates a federal law that guarantees necessary treatment in medical emergencies, as the court’s conservative majority deals with the fallout from its 2022 decision that overturned a nationwide right to terminate a pregnancy.

A federal law enacted in 1986 – the Emergency Medical Treatment and Active Labor Act, or EMTALA – requires hospitals that receive Medicare funding to provide whatever care is needed to “stabilize” patients in a medical emergency and prevent their condition from deteriorating.

The Biden administration contends that Idaho’s Defense of Life Act violates that law because it permits abortion only when pregnancy endangers a woman’s life and not when it merely threatens her with serious health problems, such as kidney failure or losing the ability to have children in the future.

“In some tragic cases, women suffer emergency complications that make continuing their pregnancy a grave threat to their lives or their health,” Solicitor General Elizabeth Prelogar, a native Idahoan, argued on behalf of the government. “In cases like these, where there is no other way to stabilize the woman’s medical condition and prevent her from deteriorating, EMTALA’s plain text requires that she be offered pregnancy termination as the necessary treatment. And that’s how this law has been understood and applied for decades.”

Prelogar told the justices that the gap between Idaho’s narrow exception and the federal law’s requirements means that doctors, facing the threat of prison if they violate the Idaho law, have been transferring women in medical crisis to Washington, Utah and other states with less restrictive abortion laws.

“The situation on the ground in Idaho is showing the devastating consequences of that gap,” she said. “Today, doctors in Idaho and the women in Idaho are in an impossible position: If a woman comes to an emergency room facing a grave threat to her health, but she isn’t yet facing death, doctors either have to delay treatment and allow her condition to materially deteriorate or they’re airlifting her out of the state so she can get the emergency care that she needs.”

Joshua Turner, chief of constitutional litigation and policy in Idaho Attorney General Raúl Labrador’s office, argued that EMTALA doesn’t require doctors to violate state laws. The federal law requires hospitals either to provide treatment “within the staff and facilities available at the hospital” or to transfer a patient to another hospital.

“Illegal treatments are not available treatments,” Turner told the court, adding that nurses aren’t allowed to perform open-heart surgery. “The answer doesn’t change just because we’re talking about abortion.”

During the oral arguments, divisions among the nine justices emerged along ideological lines and between the four women and five men on the court.

Samuel Alito and Clarence Thomas, the court’s most conservative members, focused their questions on a concept known as “fetal personhood,” which treats both a pregnant woman and a fetus as equal patients whose interests must be balanced. Both men appeared to have made up their minds that Idaho’s law should stand, with Alito occasionally interjecting in Turner’s defense and Thomas alternately staring at the ceiling and covering his eyes with his hand as others spoke.

Two justices appointed by former President Donald Trump expressed skepticism about the Biden administration’s arguments. Brett Kavanaugh suggested that Idaho’s law may not conflict with the federal law, while Neil Gorsuch challenged the federal government’s authority to pre-empt state laws and condition federal funding on compliance with those laws.

The court’s three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – challenged the Idaho law in a series of questions about what should happen in cases when a pregnant woman’s health is in danger but a doctor isn’t sure that she is at immediate risk of death.

In a moment that sent an excited murmur through the otherwise silent courtroom, Justice Amy Coney Barrett – who was appointed by former President Donald Trump – jumped in when Turner said that those decisions would be “very case-by-case.”

“I’m kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered,” Barrett said, referring to a brief filed by Idaho. When Turner replied that a doctor who determined “in good faith” that an abortion was medically necessary to save a patient’s life would be protected under the Idaho law, Barrett pushed back.

“What if the prosecutor thought differently?” Barrett asked. “What if the prosecutor thought, ‘Well, I don’t think any good-faith doctor could draw that conclusion?’ ”

In a response that didn’t seem to assuage the four female justices’ concerns, Turner said, “That, Your Honor, is the nature of prosecutorial discretion.”

Chief Justice John Roberts, a Republican appointee who often tries to moderate the decisions of the conservative-dominated court, stepped in and asked how Idaho would determine whether a doctor had violated the state law. Turner replied that it was a “subjective” standard.

Deirdre Bowen, a law professor and director of the Family Law Center at Seattle University, said the justices’ questions suggested that although a majority may not side with the Biden administration, Roberts and Barrett may be looking for a middle ground in which Idaho’s law is revised so that doctors can’t be prosecuted based on that subjective standard.

“There’s a variety of different avenues that the justices can go down in trying to think about how to resolve this issue,” Bowen said in an interview. “What may occur is that this law is going to be found to be unconstitutional and in violation of the federal law, but in a very narrow way.”

Bowen said she expects that Barrett – who voted with the court’s other Republican appointees to overturn Roe v. Wade in 2022, leaving abortion access up to individual states – will play a key role in dealing with the fallout from that decision.

“I think she has really been an intriguing surprise in not just this case, but also in the Mifepristone case,” Bowen said, referring to a case involving abortion pills that began partly in a federal court in Spokane. “It’s clear in her questions that she is really trying to find a middle ground.”

Outside the Supreme Court before and after the oral arguments, there was no middle ground in sight. Competing groups of protesters held signs and chanted, “Abortion is murder” and “Abortion is health care.”

Protesters who support and oppose abortion rights stand in front of the Supreme Court on Wednesday before the court heard oral arguments in Idaho v. United States and Moyle v. United States, a consolidated case arising from the Biden administration’s challenge to Idaho’s near-total abortion ban.  (Orion Donovan Smith/The Spokesman-Review)
Protesters who support and oppose abortion rights stand in front of the Supreme Court on Wednesday before the court heard oral arguments in Idaho v. United States and Moyle v. United States, a consolidated case arising from the Biden administration’s challenge to Idaho’s near-total abortion ban. (Orion Donovan Smith/The Spokesman-Review)

While the justices seek to distance the high court from the political battles that rage across the street at the Capitol, members of Congress have jumped into the case, seeing abortion as a key issue to fire up their voters in an election year.

Rep. Russ Fulcher, who represents North Idaho and flew to D.C. during a congressional recess to attend the oral arguments, and Sen. Jim Risch of Idaho led a group of their fellow Republicans in filing a brief in support of Idaho’s position.

“The Biden administration has no authority to use EMTALA to avoid holding these individuals accountable for breaking the law, and this sets a precedence that is harmful to women and children around the country,” Fulcher said in a statement in February, when Risch also said in a statement, “Idahoans have passed a strong law to protect the lives of mothers and the unborn, yet the Biden administration is seeking every opportunity to expand abortion.”

Sen. Patty Murray of Washington led a group of Democrats in filing a brief in support of the Biden administration’s position.

“The stakes of this case cannot be understated: Republicans are trying to deny pregnant women whose water breaks dangerously early, or who are experiencing uncontrollable hemorrhage, sepsis, or pre-eclampsia, access to emergency abortion care that would stabilize their health and save their lives,” Murray said in a statement Tuesday. “If there was ever a case that underscored how the ‘pro-life’ movement doesn’t care a whit about women’s lives, this is it.”

Bowen said the Idaho case and the case related to Mifepristone show how the court’s decision to reverse half a century of precedent in its 2022 ruling, known as Dobbs v. Jackson Women’s Health Organization, will continue to define American politics throughout this election year.

“The reason why the Supreme Court has taken up these cases in short order, and that there’s been two abortion cases in an election year, is that I don’t think the court understood what the nation’s political reaction would be to their very high-minded, intellectual, navel-gazing analysis that did not consider the social realities of 50% of the population,” she said. “And now they’re having to go back and confront that the law does not operate in an ivory tower – it operates in a political and social landscape in which very real health care impacts are already playing out.”

The court is expected to issue its ruling in the consolidated cases, known as Idaho v. United States and Moyle v. United States, in June or July.