The Supreme Court appeared divided Wednesday on the Biden administration’s effort to ensure access to abortion in emergency rooms despite Idaho’s near-total criminal ban on the procedure.
During the nearly two hours of oral argument, conservative justices in the court’s 6-3 majority expressed skepticism over the federal government’s contention that the Emergency Medical Treatment and Active Labor Act, or EMTALA, trumps the state law.
But Justices Amy Coney Barrett and Brett M. Kavanaugh pushed back on arguments from both sides, making it less clear how they ultimately might rule on the issue. The court is expected to issue a decision by the conclusion of the term at the end of June.
The justices on the liberal wing of the court pressed Idaho on the impacts the state law may have on pregnant patients forced to wait until near-death for care, while several conservatives pressed the Biden administration over the sweep of federal power asserted in the case.
Solicitor General Elizabeth Prelogar argued Wednesday that EMTALA requires “stabilizing” care in emergencies, which can include abortion. She said patients in Idaho are already facing problems because doctors fear they will face charges or lose their medical license.
“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,” Prelogar said.
Prelogar said the administration was concerned about state abortion laws in six states that have health exceptions narrower than federal law. But conservative justices questioned the reach of the federal government into health care, as EMTALA governs Medicare eligibility.
Justice Samuel A. Alito Jr., who wrote the opinion in the 2022 Supreme Court ruling that wiped out a constitutional right to an abortion, pushed the Biden administration to defend the use of spending legislation to dictate state criminal law. Alito said spending laws are constitutional because they work on an agreement between the government and the recipient of the money, which for EMTALA is between the federal government and the hospital, not the state.
“How does the Congress’ ability to do that authorize it to impose duties on another party that has not agreed to accept this money?” Alito said.
Justice Neil M. Gorsuch also pushed Prelogar on whether the government could use similar arguments to take over medical licensing, medical malpractice or other regimes.
“Congress could prohibit gender reassignment surgeries across the nation. It could ban abortion across the nation, through the use of its Spending Clause authority, right?” Gorsuch asked.
Prelogar responded that the Supreme Court has already held that the government has “broad authority” to regulate through its spending powers and said, “I think that that would be valid legislation.”
And Barrett, who repeatedly questioned Idaho’s attorney about the breadth of the state law, said it “seems odd” that the federal government could use spending laws to go around state criminal statutes.
“I mean, you can imagine it kind of going back and forth through Spending Clause litigation, in ways that would be unusual,” Barrett said.
Joshua Turner, the attorney from Idaho, faced a thorough grilling from the liberal wing of the court about the sweep of its state mandate. Justice Sonia Sotomayor said the law may require that doctors in Idaho allow a patient to deteriorate in order to comply with the state criminal law in violation of the federal one.
“There will be some women who present serious medical conditions that the federal law would require to be treated who will not be treated under Idaho law,” Sotomayor said.
At several points, Turner acknowledged “daylight” between the state abortion ban’s line at the life of the mother and EMTALA’s broader concern for the health of the patient. But Idaho argued that the federal emergency care law at issue is meant to prevent “patient dumping” — hospitals turning away sick patients who could not pay for care — and not to allow the federal government to dictate state law.
Prelogar said the idea of the law was to go to an emergency room and get care no matter where in the nation you were. “But this effectively allows states to take any particular treatment they don’t want their hospitals to provide and dump those patients,” she said. “And you can imagine what would happen if every state started to take this approach.”
Previously, the justices allowed the state to continue enforcing the law while the challenge plays out.
The pair of cases, referred to as Moyle v. United States, is the second time the justices have heard arguments dealing with abortion access since the 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned the constitutional right to an abortion.
The justices are set to decide this case and another dealing with access to a medication abortion drug before the end of the court’s current term in June.
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