Inscrutable. That is the only word to accurately describe the Supreme Court's latest abortion argument Thursday.
At issue is a clash between federal and state law about how pregnant women must be treated in the emergency room. Specifically, whether a state may ban medical termination of a pregnancy if the woman's health, but not her life, is in grave danger.
The case centers on a law enacted in 1986 to stop hospitals from turning away uninsured patients or dumping them on other hospitals. It's known as the Emergency Medical Treatment and Labor Act, or EMTALA. The law says that as a condition for receiving Medicare funds, hospital emergency departments must stabilize a patient whose life or health is at risk. If the hospital can't do that, it must provide safe transport to a facility that can.
But Idaho and a few other states have now enacted laws that ban emergency abortions unless the mother's life, but not her health, is at risk.
At the Supreme Court lectern Thursday, Idaho Solicitor General Joshua Turner defended the restrictive law, declaring that the state is entitled to make decisions about the practice of medicine within its borders. But he faced some unusually angry questions from the court's three liberal justices, all women, with an occasional assist from conservative Justice Amy Coney Barrett, who is firmly opposed to abortion.
Justice Sonia Sotomayor hammered Turner with a series of real-life examples of women in dire health circumstances, who would be denied a medically necessary abortion under the Idaho law. She interrupted him so often that Chief Justice John Roberts at one point intervened to lower the temperature and get an answer from Turner.
Drawing an analogy not involving abortion, Sotomayor, a diabetic, observed that "no state licensing law" would permit the state to tell doctors, "don't treat diabetics with insulin, treat them only with [far less effective] pills.... Federal law would say you can't do that."
Justice Elena Kagan asked Turner what in EMTALA says that a woman has to be at "death's door" before doctors treat her with a necessary emergency abortion to stabilize her condition.
"That understanding is a humble one with respect to the federalism role of the states as the primary care provider for the citizens, not the federal government," Turner answered.
"It may be too humble for women's health, you know," Kagan observed, caustically.
And Justice Ketanji Brown Jackson said that EMTALA established a "federal mandate" that preempts state laws.
Pummeled with questions, Idaho's Turner refused to commit to which health-threatening conditions could be legally treated with abortions under state law. Could an abortion take place to preserve a woman's organs? Her fertility? To save her from future debilitating kidney disease or strokes?
Turner's ambiguous answers prompted surprise from Justice Barrett, a mother of seven who has herself had miscarriages. "Counsel, I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered. And you're now saying they're not? Turner's replay clearly didn't satisfy her. She accused him of "hedging."
Chief Justice Roberts asked who would make the decision, other than the doctor, as to what constitutes a permissible emergency abortion and what the standard would be.
Turner replied that there is no objective standard, just a subjective one. The doctor's decision would not be judged based on what a "reasonable doctor" would do, only on whether he personally acted in good faith.
Arguing the other side of the case on behalf of the Biden administration, Solicitor General Elizabeth Prelogar faced an equal barrage of questions, mainly from the court's conservative justices.
Could a woman's psychological health be justification for an emergency abortion? No, replied Prelogar.
Three justices—Roberts, Barrett, and Neil Gorsuch—all asked if EMTALA provides exceptions for doctors or hospitals with religious objections to abortion.
Prelogar replied that conscience objections exempt both from performing abortions under EMTALA, but she added that the Department of Health and Human Services "had never come across a hospital that had a blanket objection to providing life-preserving and health-preserving pregnancy termination care."
Several conservative justices also sought to flesh out what limits there might be to laws that condition federal aid, such as the funding to hospitals governed by EMTALA. Barrett and Gorsuch, for instance, asked if gender-reassignment surgery could be banned at hospitals as a condition for receiving federal money.
Prelogar replied that in her view Congress has that power.
And Justice Samuel Alito, author of the decision overturning Roe v. Wade, looked up at the clock at one point and observed that an hour and a half into the argument, "one potentially very important phrase in EMTALA has hardly been mentioned...and that is EMTALA's reference to the woman's 'unborn child.'"
"The statute did nothing to displace the woman herself as an individual with an emergency medical condition," Prelogar replied. "In many of the cases you're thinking about, there is no possible way to stabilize the unborn child...it's inevitable that the pregnancy is going to be lost, but Idaho would deny women treatment in that circumstance even though it's senseless."
A decision in the case is expected in the summer.
