Supreme Court considers whether abortions should be permitted in ER Rooms
Biden Administration had challenged Idaho abortion ban on grounds that it didn't comply with federal rule dictating universal standards of care
The U.S. Supreme Court heard oral arguments on Wednesday in a lawsuit that centers on whether an Idaho abortion ban conflicts with a federal law that ensures universal standards of care within emergency rooms.
The case was Moyle v. United States, the second of the significant abortion lawsuits currently considered by the justices. Joshua Turner represented the state of Idaho, while Solicitor General Elizabeth Prelogar argued on behalf of the U.S. government.
Turner opened his arguments by saying that medicine regulation falls under state jurisdiction.
“If ER doctors can perform whatever treatment they determine is appropriate, then doctors can ignore not only state abortion laws but also state regulations on opioid use and informed consent requirements,” Turner said. “That turns the presumption against preemption on its head and leaves emergency rooms unregulated under state law.”
Turner told Justice Clarence Thomas that Idaho has no state hospitals participating in EMTALA.
Justice Ketanji Onyika Brown Jackson asked Turner whether the stabilization requirement, which mandates that hospitals provide whatever care is necessary, applied to the state of Idaho. Turner conceded it did partially. The liberal justices grilled him for a significant portion of the time before Chief Justice John Roberts interceded to ask Turner to respond.
After apparently hedging his arguments, Turner was then questioned by Justice Amy Coney Barrett, who asked him whether different doctors could reach different conclusions. She then asked the hypothetical of whether one doctor could be prosecuted if another disagreed with his or her assessment of whether a life-saving abortion was merited.
“What if the prosecutor thought differently?” Barrett said. “What if the prosecutor thought, well, I don't think any good-faith doctor could draw that conclusion?”
Turner said that was the nature of prosecutorial discretion.
Chief Justice Roberts asked what the process was when a doctor performed an abortion–focusing on whether there was a review process by a medical board. Turner said it is up to the doctor's good faith medical judgment. Roberts then asked whether doctors could have different standards of judgment.
Throughout his argument, Turner was interrupted numerous times, which Justice Samuel Alito pointed out when further questioning him. Turner later explained his central argument in further detail.
“These are difficult questions that turn on the facts that are on the ground between the doctor as he is assessing them with his medical judgment that he's bringing to bear but is also necessarily constrained by Idaho law,” Turner said. “Just like every other area of the practice of medicine, state law confines doctor judgment in some ways.”
Justice Brett Kavanaugh asked if mental health was a reason for providing abortions in those settings. Turner said it was not.
“I a woman presents at seven months pregnant in an Idaho emergency room and says, ‘I'm experiencing severe depression from this pregnancy, I'm having suicidal ideation from carrying this pregnancy forth,’” Turner said. “That wouldn't under the administration's reading be the only stabilizing care.”
Barrett pointed out in her questioning that a doctor could refer the patient in those circumstances to a mental health facility.
After a few more questions on the matter that covered much of the same ground, Prelogar addressed the justices on behalf of the Biden Administration. She pointed out that Idaho makes abortion punishable as a felony offense, carrying with it years of imprisonment as a potential sentence.
“The situation on the ground in Idaho is showing the devastating consequences of that gap,” Prelogar said. “Today, doctors in Idaho and the women in Idaho are in an impossible position.”
Upon Justice Thomas’ questioning, Prelogar responded that the Idaho law prevents hospitals from complying with federal requirements that come from accepting funds through Medicaid and HHS. The response centered on the Spending Clause in the Constitution, which Prelogar argues permits the government from imposing conditions on states for the acceptance of money.
“How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare?” Alito said. “I don't understand how this squares with the whole theory of the Spending Clause.”
Prelogar responded to the conservative justices’ questioning by characterizing the arguments put forth by Idaho.
“What it wants is for its hospitals to be able to accept Medicare funding but not have to face the restrictions that are attached to those funds as an essential part of the bargain,” Prelogar said. “ And there is no precedent to support that outcome.”
Alito asked if there was a point in pregnancy when an abortion wouldn’t be permitted under EMTALA. Prelogar replied by saying most complications happened before viability and that in most of these circumstances, a child wouldn’t be viable even in the third trimester because it would likely die upon birth.
Alito asked her directly whether mental health would be an exception. Prelogar responded that the federal government had not argued for that.
“With respect to what qualifies as an emergency medical condition, it can include grave mental health emergencies, but let me be very clear about our position,” Prelogar said. “That could never lead to pregnancy termination because that is not the accepted standard of practice to treat any mental health emergency.”
The justices also discussed conscience clauses, which permit doctors and Catholic hospitals to refuse care that conflicts with their ethics.
“In that circumstance, EMTALA could not override those individual doctors' conscience protections, but my understanding is that as a matter of best practice, because hospitals want to be able to provide emergency care, they do things like ask doctors to articulate their objections in advance so that that can be taken into account in making staffing decisions and who's on call,” Prelogar responded.
Prelogar argued that hospitals must have someone on staff who would be able to perform abortions. That means someone who didn’t have an ethical objection.
Alito asked a series of questions that implied EMTALA protected the life of an unborn child. That brings into question whether fetal personhood was established by it.
“Doesn't what I've read to you show that the statute imposes on the hospital a duty to the woman certainly and also a duty to the child?” Alito said. “And it doesn't tell the hospital how it is to adjudicate conflicts between those interests, and it leaves that to state law.”
Prelogar responded by saying that the duties put forth by EMTALA pertain to pregnant women only.
Kagan alluded to a report that the largest emergency provider in Idaho has had to airlift six pregnant women to neighboring states, whereas, in the previous year, they did one. She asked Prelogar why that happened.
“They can recognize that their livelihood is on the line, their medical license, their ability to practice medicine, their freedom if they have to go to jail and serve one of these minimum two-year sentences of imprisonment, and they simply cannot provide the care,” Prelogar said.