A divided Supreme Court seemed skeptical that Idaho’s strict abortion ban conflicts with a federal emergency care law, but there appeared to be a split by gender as well as ideology during the nearly two hours of argument. 

The four female justices, including conservative Amy Coney Barrett, pushed back the hardest against Idaho’s assertion that its law, which prohibits doctors from performing an abortion except when a woman’s life is in danger, supersedes the federal emergency care statute EMTALA. 

Doctors face up to five years in prison for violating Idaho’s law. 

The liberal justices in particular asked detailed questions about what would constitute a medical emergency, zeroing in on complications that would rob a woman of her reproductive organs or put her at risk of sepsis.  

The case centers on a federal law known as EMTALA, or the Emergency Medical Treatment and Active Labor Act, which requires federally funded hospitals to provide stabilizing care to emergency room patients no matter their ability to pay.    

The Biden administration argues that even in states where abortion is banned, EMTALA says hospitals must be allowed to terminate pregnancies in rare emergencies where a patient’s life or health is at serious risk.   

Barrett had sharp questions for Idaho’s attorney Joshua Turner over just how much discretion doctors really have to make decisions in medical emergencies that may not be life threatening.  

Turner argued that the laws allows decisions to be made on a case-by-case basis, but Barrett was critical of that argument and accused Turner of “hedging.” 

Barrett’s questioning doesn’t always give an indication of how she will vote, and the three liberal justices need at least two conservatives to side with them in order for the Biden administration to win the case.  

DEVELOPING

The U.S. Supreme Court on Wednesday, for the first time since overruling Roe v. Wade, will consider the scope of a state abortion ban and whether a federal law governing emergency care protects access to abortion at hospitals when a woman’s health is at risk.

Idaho’s Defense of Life Act, which took effect in August 2022, prohibits nearly all abortions, with exceptions for reported cases of rape or incest or when “necessary to prevent the death of the pregnant woman.”

The Biden administration sued the state, claiming its law conflicts with the Emergency Medical Treatment and Labor Act (EMTALA) of 1986, which requires emergency room physicians at hospitals that receive Medicare funds to offer “stabilizing treatment” to all patients whose health is in jeopardy.

The justices will decide whether EMTALA, which does not specifically address abortion, preempts Idaho’s abortion ban and similar measures in 20 other states, protecting a doctor’s ability to terminate a pregnancy in an emergency situation if care requires it.

The administration argues the federal law explicitly makes clear that state laws are overridden to the extent they “directly conflict with a requirement” of EMTALA.

“EMTALA requires us as physicians to act in an emergency to preserve health – even the health of an organ system, like the reproductive system, as one example,” said Dr. Jim Souza, chief physician executive at Idaho’s St. Luke’s Health System. “Idaho’s law only allows action to save life, not preserve health.”

Idaho contends that Congress enacted EMTALA solely to prevent hospitals from turning away indigent patients or otherwise discriminating against patients on the basis of their condition or status.

“EMTALA leaves the question of specific treatments for stabilizing care to state law,” Idaho told the Court in its brief. “Indeed, EMTALA treats medical emergencies faced by the unborn child of a pregnant woman no differently than emergencies faced by the mother herself.”

The state also argues that the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health – overturning constitutional protection for abortion – explicitly returned the issue to the states. It accuses the Administration of trying to “reimpose a federal abortion requirement.”

“The purpose of the law is to protect the life of mothers and their unborn children,” said Dr. Ingrid Skop, a Texas-based OBGYN and vice president of the Charlotte Lozier Institute, an anti-abortion group. “All states allow doctors to use reasonable and good faith judgment on when to intervene. Abortion is rare, if ever, necessary” in an emergency.

The stakes in the case are significant.

“If the Court sides with Biden, it would be incredibly troubling and a sweeping precedent for them to set,” said Katie Daniel, state policy director for SBA Pro-Life America.

Major American medical organizations have warned that state abortion bans without exceptions for a pregnant woman’s health could lead some women to experience lasting harm.

“Before the law, we practiced medicine to preserve the mom’s health and future reproductive capability. Since then, there’s been a lot of second-guessing and hand wringing,” said Souza, “Is she sick enough? Is she bleeding enough? Is she septic enough for me to do an abortion and not go to jail or lose my license?”

Hospital groups have reported increased difficulty hiring OBGYNs and emergency room physicians in states like Idaho because of potential liability from strict abortion laws with few exceptions.

“This case could radically alter how emergency medicine is practiced in this country,” said Alexa Kolbi-Molinas, an ACLU attorney supportive of abortion rights.

“For nearly 40 years, EMTALA has required every hospital with an emergency department that takes Medicaid funds to provide stabilizing treatment to any individual who needs it regardless of where they live,” she said. “No state law can force hospitals to provide a lesser standard of care. But now the court is deciding whether states can override that.”