If the justices side with Idaho, Americans could be left with a federal emergency medicine law that is open to exempting disfavored people, conditions and treatments – for example emergencies involving people addicted to opioids, Aids-related emergencies or treatment for gender dysphoria.
Idaho’s quest to exert total control over abortion could also, in the long term, establish legal theory that undermines the federal government’s broader ability to regulate healthcare, the same way exempting the so-called abortion pill, mifepristone, from Food and Drug Administration analysis, would undermine drug regulation.
Both cases are about abortion on their face, but the legal theories underpinning them could have extraordinarily broad implications for the health of all Americans.
Justices hammer Idaho over whether abortions should only be allowed to save lives rather than fertility
Carter Sherman
The supreme court’s four female justices, including conservative Amy Coney Barrett, seemed taken aback by the claim by Idaho’s deputy solicitor general, Josh Turner, that a doctor could be prosecuted for performing an abortion in order to protect a woman’s health, rather than her life.
Idaho’s abortion ban only permits abortions in medical emergencies if a woman’s life is at stake. Justice Sonia Sotomayor, a liberal, read off a list of real-life cases where women had their abortions delayed in medical emergencies. The problem with bans like Idaho’s, doctors say, is that doctors are forced to wait and watch until patients get so sick that their life is at risk – rather than intervening as soon as a health issue emerges.
After the story of one woman, who Sotomayor said lost her baby and was forced into a hysterectomy, the justice asked if, under Idaho’s law: “You’re telling me the doctor there couldn’t have done the abortion earlier?”
“It goes back to whether a doctor can in good-faith medical judgment – ” Turner started to say.
“That’s a lot for a doctor to risk,” Sotomayor interrupted. If a doctor violates Idaho’s abortion ban, they can face up to five years in prison.
Turner tried to insist that a doctor operating in good faith would not be prosecuted under the Idaho state legislature’s interpretation of its abortion ban.
Coney Barrett asked: “What if the prosecutor thought differently?”
“That is the nature of prosecutorial discretion,” Turner replied.
Emtala case turns on difference between abortion that protects woman's health and one that saves her life
Carter Sherman
The case that the justices are hearing right now, which deals with whether federal law protects hospitals’ ability to offer medically necessary abortions, turns on an oft-overlooked nuance in abortion law: the difference between an abortion that may protect a woman’s health versus one that may save her life.
All US abortion bans technically allow abortions in medical emergencies. But seven states, including Idaho, have bans on the books that say that the patient’s life has to be at risk — a higher standard than bans that allow for abortions when a patient’s health is in jeopardy.
The Biden administration sued Idaho over its ban, arguing that it conflicts with the Emergency Medical Treatment and Active Labor Act, or Emtala. Emtala requires hospitals to stabilize patients’ health when they are facing medical emergencies, including — in the Biden administration’s view — in cases where patients need abortions. If an Idaho doctor performs a “health-saving” abortion, they could run afoul of Idaho’s ban — but if they don’t, they could violate Emtala.
“Her life is not in peril but she’s going to lose her reproductive organs … unless an abortion takes place,” said Justice Elena Kagan, a liberal. “Now, that’s the category of cases where Emtala says: ‘My gosh, of course an abortion is necessary.’
“And yet Idaho says: ‘Sorry, no abortion here.’ And the result is these patients are now helicoptered out of state,” Kagan continued.
The problem with abortion bans, doctors say, is that it is not always clear when a patient’s life is at risk. And if doctors know that a pregnant patient’s condition may worsen, they want to help her – not wait until she’s on the brink of death.
Fellow liberal justice Sonia Sotomayor proceeded to read off a list of real-life cases where women’s abortions were delayed due to abortion bans, including the case of a woman who was ultimately forced to have a hysterectomy.
Idaho’s attorney Josh Turner argued that Emtala cannot override the state’s law to require medical treatment in contravention of its abortion ban.
He immediately received pushback from the court’s three liberal justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.
“The problem we’re having right now is that you’re sort of putting preemption on its head. The whole purpose of preemption is to say that if the state passes a that violates federal law, the state law is no longer effective,” said Sotomayor.
“If objective medical care requires you to treat women who are, who present the potential of serious medical complications, and the abortion is the only thing that can print them and that you have to do it.”
The Emergency Medical Treatment and Active Labor Act, better known to hospitals administrators nationally as Emtala, requires emergency rooms to stabilize patients regardless of their ability to pay.
The act is among Americans’ only universal federal rights to healthcare – one propelled into law by stories of private hospitals’ “dumping” patients who could not pay, including women in active labor, at public hospitals.
This law could be left in tatters if justices side with anti-abortion states, represented by Idaho. Emtala requires doctors to treat patients if they face a serious risk to health, treatment that includes exceedingly rare emergency room abortions, the Biden administration argues.
Idaho’s state law is in direct conflict with this federal right to health, because it only allows doctors to intervene with an abortion if a woman is about to die. On the one hand, Emtala can levy serious penalties against providers and hospitals if doctors do not treat women. On the other, doctors could serve jail time or lose their license if they violate Idaho’s law.
The arguments begin with opening statements from Josh Turner, Idaho’s constitutional litigation and policy chief.
He argued that the Biden administration is interpreting Emtala – the federal law that the White House argue requires hospitals to perform abortion in emergencies, even when that runs afoul of state law – too broadly.
“Everyone understands that licensing laws limit medical practice. That’s why a nurse isn’t available to perform open heart surgery, no matter the need, no matter her knowledge,” he said.
“The answer doesn’t change just because we’re talking about abortion. The court should reject the administration’s unlimited reading of Emtala and reverse the district court’s judgment.”
Supreme court begins hearing emergency abortion case
The supreme court has convened to hear a case from Idaho challenging the Biden administration’s requirement that federally funded hospitals carry out abortions in emergencies.
What's at stake as the supreme court hears emergency abortion case?
Carter Sherman
The supreme court is about to hear arguments over whether federal law can require hospitals in states with abortion bans to perform medically necessary abortions.
The case originated in Idaho, which only permits abortions in medical emergencies if a patient’s life is at risk. The Biden administration has sued Idaho, claiming that Idaho’s stringent ban violates the Emergency Medical Treatment and Active Labor Act – known as Emtala.
Idaho is expected to argue that its ban doesn’t conflict with Emtala, because Emtala does not mention abortion and cannot compel doctors to perform procedures that are illegal under Idaho law.
The case marks the second time this year that the supreme court, where the six conservative justices outnumber the three liberals, and which overturned Roe v Wade less than two years ago, has dealt with abortion rights. Last month, the justices also heard arguments in a case that deals with the availability of a common abortion pill.
Protesters converge on supreme court ahead of hearing on emergency abortions
As the supreme court prepares to weigh whether Idaho’s abortion ban conflicts with the Biden administration’s insistence that federally funded hospitals carry out emergency abortions, protesters representing both sides of the debate are gathering outside:
Protesters in favor and opposed to abortion gather outside the supreme court in Washington DC. Photograph: Saul Loeb/AFP/Getty Images
A protester opposed to abortion outside the supreme court. Photograph: Kevin Lamarque/Reuters
Abortion rights supporters stage a ‘die-in’ outside the supreme court. Photograph: Andrew Harnik/Getty Images
Supreme court to hear conservative challenge to Biden policy requiring hospitals to provide emergency abortions
Good morning, US politics blog readers. The issue of abortion will once again be before the supreme court this morning, and the conservative justices who two years ago upended the country’s politics by voting to overturn Roe v Wade and allow states to ban abortions. In response to that decision, Joe Biden said that even states where the procedure is banned must still allow hospitals that receive federal funds to perform the procedure in an emergency, citing a 1986 law called the Emergency Medical Treatment and Active Labor Act, or Emtala. Today’s legal tussle involves the deeply conservative state of Idaho, where abortion is prohibited unless a patient’s life is at risk in an emergency. The Biden administration sued the state, arguing that its law clashed with Emtala, and the justices now have to sort out the dispute.
The supreme court is dominated by a supermajority of six conservative justices against three liberals, but since dismantling Roe, they haven’t necessarily shown the same zeal for other efforts to further restrict abortion. About a month ago, the justices appeared skeptical of attempts by anti-abortion doctors to roll back the availability of mifepristone, a drug used nationwide in medication abortions. Today’s hearing begins at 10am ET, and we’ll be listening to the arguments for a sense of how they are leaning on this issue.
Here’s what else we are watching today:
Biden is expected to sign a bill approved by the Senate last night that authorizes $95b in aid to Ukraine, Israel and Taiwan, capping months of congressional wrangling over the contentious issue.
The Republican speaker of the House, Mike Johnson, is heading to Columbia University, which has been rocked by pro-Palestinian protests in recent days and police arrests of demonstrators. He will hold a press conference at 3:45pm this afternoon, and you can follow our live blog for more.
Summer Lee, a progressive Democratic congresswoman who faced a primary challenge over her support for a ceasefire in Gaza, easily won the party’s nomination again to represent her Pennsylvania district.
