Idaho’s abortion rules too tough to comply with federal health law, supreme court told
The US supreme court faced its second judgment on abortion rights in the space of a month yesterday, as judges prepared to rule whether the state of Idaho’s tough rules on the procedure breached a federal law.
The Biden administration has sued Idaho, arguing that because the state only permits abortions in medical emergencies if a woman’s life is at risk, it demands a higher threshold than the Emergency Medical Treatment and Active Labor Act, or Emtala.
As the court debated the second abortion case it has faced since the overturning of Roe v Wade, which granted the right to abortion across the US, the court’s three liberal judges seemed inclined to rule in favour of abortion rights. The intentions of the court’s six conservative justices were, however, less clear from the tenor of the hearing.
Much of the two-hour argument dealt with the real-life consequences of bans such as Idaho’s. Elizabeth Prelogar, the US solicitor general, emphasised the danger now facing women who show up in crisis at Idaho emergency rooms.
“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,” Prelogar said. “One hospital system in Idaho says that, right now, it’s having to transfer a pregnant woman in medical crisis out of the state about once every other week. That’s untenable, and Emtala does not countenance it.”
The case is a test of one of the Biden administration’s chief efforts to protect abortion rights. Shortly after the supreme court overturned Roe v Wade and allowed states to outlaw abortion, the administration issued guidance clarifying that Emtala requires hospitals everywhere to perform abortions if patients need them in emergencies.
A federal judge initially sided with the Biden administration, stopping Idaho from enforcing the parts of the ban that conflicted with Emtala. But the supreme court in January issued an order allowing Idaho’s full abortion ban to take effect.
Idaho, which is also represented in the case by the powerful Christian law firm the Alliance Defending Freedom, has argued in court papers that its ban does not conflict with Emtala, in part because Emtala does not mention abortion and cannot compel doctors to offer care that is illegal under state law.
Idaho is one of seven states with laws on the books that require a patient’s life to be at risk before an emergency abortion can be performed.
Idaho has argued that Emtala requires providers to treat an “unborn child”. Supreme court justice Samuel Alito, a conservative, brought up that phrase, indicating that Emtala is meant to imply that doctors have two equal patients when a pregnant woman shows up at an ER: the woman and her foetus.
“It seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty,” Alito said.
Prelogar insisted that phrase, added to Emtala in 1989, was meant to ensure that hospitals treated women whose foetuses were in crisis while they were not.
“The statute did nothing to displace the woman herself as an individual with an emergency medical condition,” Prelogar replied.
The exchange evoked the spectre of foetal personhood, a priority of the anti-abortion movement that aims to endow foetuses with full legal rights and protections – even if those rights conflict with those of the woman carrying the foetus. Enshrining foetal personhood across the US – which is also a goal of the anti-abortion movement – would dramatically rewrite vast swaths of US law.
Yesterday’s hearing came weeks after the court heard arguments in another abortion rights case, which involved the availability of mifepristone, a common abortion pill, and the Food and Drug Administration’s ability to regulate it.
Lawyers for the Alliance Defending Freedom also argued that case on behalf of anti-abortion activists. Both arguments have significant implications for the federal government’s power to regulate healthcare.
If anti-abortion states prevail, “you’re basically deconstructing the entire way that we manage health nationally in this country”, said Gerson Smoger, the chair of the board of Physicians for Human Rights, an NGO. “There has to be some baseline that we have, nationally.”
Rulings in the Emtala and mifepristone cases are expected in June.
‘If this prevails, you’re deconstructing the way we manage health in this country’
Gerson Smoger Campaigner