The Biden administration on Wednesday urged the Supreme Court to declare federal law supreme and to force states with severe abortion bans to allow exceptions in emergency cases where a woman’s health is at risk.
Solicitor General Elizabeth Prelogar told the justices that a federal emergency care law that requires hospitals to stabilize patients covers abortions, so if a doctor thinks an abortion is needed to prevent serious health consequences to a woman, it must be performed.
That conflicts with Idaho’s law, which restricts abortions only to cases where the woman’s life is in danger.
“Today, doctors in Idaho and the women in Idaho are in an impossible position,” Ms. Prelogar said. “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.”
The case rose to the justices two years after the decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and erased the federal guarantee of abortion rights.
The issue is now back with the states, but the Biden administration is trying to refashion at least some national standards by using the Emergency Medical Treatment and Active Labor Act, which applies to hospitals that take federal Medicare money.
SEE ALSO: Justice Sotomayor bungles state abortion laws during Supreme Court argument
Under that law, hospitals must deliver stabilizing treatment to emergency patients.
The justices sparred over what that means.
“Abortion is the accepted medical standard of care,” said Justice Elena Kagan, an Obama appointee. “There is basic requirements to stabilize a patient.”
But Joshua Turner, the lawyer defending Idaho’s law to the justices, said EMTALA was written in the 1980s to make sure hospitals didn’t refuse to treat poor or uninsured patients, which is why it requires them to at least stabilize someone.
He said that doesn’t override states’ laws governing what is appropriate treatment, and indeed over decades of operation there has never been another instance where state law was overridden by the federal EMTALA.
“You do presume that state law continues to operate,” he said.
Emotions ran high as Mr. Turner was peppered with questions by the three Democratic appointees, all women.
“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 — what you’re saying is there is no federal law on the books that prohibits any state from saying even if a woman will die you can’t perform an abortion,” said Justice Sonia Sotomayor, an Obama appointee.
Mr. Turner said he didn’t know of any such state.
“Some have been debating it at least,” Justice Sotomayor said.
Mr. Turner appears to be correct.
KFF, a leading source of information on abortion, said no state lacks a lifesaving exception, though five, including Idaho, lack a woman’s health exception.
Idaho lost in both federal district court, which issued an injunction of the state law, and at the 9th U.S. Circuit Court of Appeals, which upheld the injunction.
The Supreme Court put the injunction on hold while it considered the case. A ruling is expected by the end of June.
Justices struggled with how many abortions the federal law would require but the state law would deny.
Justice Sotomayor raised a series of cases from other states where women suffered pregnancy complications but were unable to get immediate abortions and then faced lasting health consequences. In one case, a woman went to the emergency room at 14 weeks, was denied an abortion and was in and out of the hospital until she delivered at 27 weeks. The baby died and the woman had a hysterectomy and can no longer bear children.
Mr. Turner suggested there aren’t a lot of cases that fall between what the federal government is asking and what Idaho allows.
He said the state is worried about the federal government’s contention that mental health is part of EMTALA. He said if someone showed up at a hospital with severe depression and blamed her pregnancy, a doctor could be required to perform an abortion.
Pro-life groups have long worried that mental health exceptions could become a catchall to allow many abortions.
Ms. Prelogar said the federal government does believe mental health can be covered by EMTALA but said abortion would never be the stabilizing care because abortion wouldn’t solve “the underlying brain chemistry.”
“This is not about mental health. This is about treatment by ER doctors in an emergency room,” she said. “The way you treat mental health is to treat what is happening in the brain.”
She also said some cases fall into the zone between the federal law and Idaho’s law. She pointed to one Idaho hospital system that has been airlifting pregnant women out of state at a rate of one every other week because doctors are so worried about being second-guessed under Idaho’s law.
EMTALA is a federal mandate that applies to hospitals that take money from Medicare, the federal health program for older Americans.
Several GOP appointees on the court wondered how that can trump the state law. Justice Amy Coney Barrett, a Trump appointee, questioned whether Congress could require hospitals that take federal money to provide sex reassignment surgery.
Ms. Prelogar said it could.
“Congress has broad power under spending law to attach conditions,” she said.
EMTALA has language that includes a woman’s unborn child in the emergency care requirement.
Justice Samuel A. Alito Jr., a George W. Bush appointee, said it was odd to try to shoehorn an abortion requirement into a law that specifically recognizes rights of a fetus.
“Have you seen abortion statutes that use the phrase unborn child? Doesn’t that tell us something?” he said.
Ms. Prelogar said the law still makes the needs of the woman primary.
“The duty runs to the individual with the emergency medical condition. The statute makes clear that’s the pregnant woman,” she said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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