What Did Supreme Court Justices Say About EMTALA and Abortion?
July 1, 2024 6 minutes read
By the end of June, the U.S. Supreme Court will decide on whether Idaho and other states can require hospitals — through criminal laws — to turn away pregnant women experiencing a major health crisis when the best treatment for them is an abortion to end their pregnancy. Idaho presented a case that their state law preempts the Emergency Medical Treatment and Active Labor Act (EMTALA), and the federal government argued that EMTALA and the mission of protecting patients’ health and lives takes precedence.1
However the highest federal court decides this case, there will be repercussions affecting women and questions about why they decided the way they did. So, Contraceptive Technology Update will try to show what the justices were thinking about this case, based on excerpts from their questions and comments on April 24, 2024, when they heard the state of Idaho and the federal government present their sides.
Takeaways from the U.S. Supreme Court’s hearing about EMTALA and abortion care in emergency departments include Justice Samuel Alito referencing Congress’s spending clause power regarding the penalty of hospitals losing Medicare funding if they did not treat and stabilize patients during a medical emergency.
“The theory is Congress can tell a state or any other entity or person, ‘Look, here’s some money or other thing of value, and if you want to accept it, fine, then you have to accept certain conditions,’” Alito said in a transcript of the hearing. “But how does the Congress’s ability to do that authorize it to impose duties on another party that has not agreed to accept the money?”1
His question of Solicitor General Elizabeth B. Prelogar, who gave the federal government’s defense of EMTALA, suggested he may find a legal exception to EMTALA’s authority.
Prelogar’s answer to him was that there are no duties imposed on Idaho but on hospitals in Idaho.
“How can you impose restrictions on what Idaho can criminalize simply because hospitals in Idaho have chosen to participate in Medicare? I don’t understand how this squares with the whole theory of the Spending Clause,” Alito answered.1
Chief Justice John Roberts asked Prelogar if the federal government’s position on EMTALA meant that religiously affiliated hospitals with emergency rooms would have to perform abortions. Prelogar said they would not have to because of federal conscience protections.1
One justice appeared to weigh a state’s criminal laws against EMTALA.
“General, are you aware of any other spending clause legislation that preempts criminal law?” asked Justice Clarence Thomas.
In various commentaries, medical and legal professionals argue that federal law overrides state law and that is why EMTALA should prevail. Or, they say hospitals should provide legal support to doctors who are in the difficult situation of caring for patients or having to break the law in these restrictive states, says Abram Brummett, PhD, an assistant professor in the department of foundational medical studies at Oakland University William Beaumont School of Medicine in Rochester, MI. He is also a clinical ethicist at Corewell Health William Beaumont University Hospital in Royal Oak, MI.
“Those are important to point out, but we wanted to offer a moral argument for why doctors should be forced to do this,” Brummett adds.
No one’s personal philosophical or religious beliefs should be put into public policy practice, he says.
“We need to make sure that no one is arguing against EMTALA’s requirement on the basis of religious argument. That’s step one,” Brummett says.
Justice Neil Gorsuch suggested that EMTALA defines an individual as both the woman and the unborn child. This is the personhood argument that promotes the idea that one person — the fetus — should not be sacrificed to save the health of another person — the woman.
Personhood arguments largely are promoted by people based on their religious beliefs. But the logic of this argument falls apart in the cases of women having a miscarriage in which there is no possibility that the fetus could survive, but there is a strong possibility the pregnant woman could become very sick and lose an organ or die if the pregnancy is not ended immediately.
“There are nonreligious reasons why you might think a fetus is a person,” Brummett adds. “There are nonreligious reasons against the EMTALA requirement, but our point is these nonreligious reasons are highly contestable using other nonreligious reasons.”
The idea of a fetus or embryo being a person with full personhood rights is highly debatable in a pluralistic society. But it is not contestable to say the pregnant person is a person with rights that include not having to die because of healthcare that is withheld, he says.
“The fact that upholding the EMTALA law is supported by those uncontested reasons is the moral reason why it ought to prevail in those cases,” Brummett says. “The pregnant person has unassailable rights.”
When the Supreme Court’s four women justices asked questions, it became clear they view EMTALA and its protection of pregnant patients much differently than do the men.1
For example, Justice Elena Kagan told Joshua N. Turner, chief of constitutional litigation and policy in Boise, ID, who spoke on behalf of Idaho, that there are rare cases where a woman’s life may not be in peril but she will lose one of her reproductive organs if the pregnancy continues, and this means she will lose the ability to have children in the future.
“Now that’s the category of cases in which EMTALA says, ‘My gosh, of course, the abortion is necessary to assure that no material deterioration occurs.’ And yet, Idaho says, ‘Sorry, no abortion here.’ And the result is that these patients are now helicoptered out of state,’” Kagan said.1
Turner’s response was that the hypothetical example is a very difficult situation, implicating deep theological and moral questions.1
“You know, that would be a good response if federal law did not take a position on what you characterize as a tough question, but federal law does take a position on that question. It says that you don’t have to wait until the person is on the verge of death. If a woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient. And the way to stabilize patients in these circumstances, all doctors agree,” Kagan responded.1
Justice Amy Coney Barrett asked Turner why his state challenged the federal government over EMTALA if there were no conflicts about hospitals having to stabilize pregnant patients, as Turner asserted earlier in the hearing: “But why? Why are you here?” she asked.
Justice Ketanji Brown Jackson also addressed the question of why Idaho wanted to take its case to federal court.
“I’m really surprised to hear you say that Idaho law permits everything that the federal law requires,” Jackson said. “I’m trying to understand that because it seems to me that if that’s the case, then why couldn’t emergency room physicians in Idaho just ignore Idaho law and follow the federal standard?”
Turner was not able to answer affirmatively to Jackson’s question.
Justice Sonia Sotomayor asked him a question that got to the heart of the difference between what EMTALA requires and what Idaho allows in emergency treatment of pregnant women: “Just answer the point, which is they will present with a serious medical condition that doctors in good faith can’t say will present death but will present potential loss of life … [or] potential loss of an organ or serious medical complications for the woman. They can’t perform those abortions?” Sotomayor asked.
“Yeah, your honor, if that hypothetical exists — and I don’t know of a condition that is so certain to result in the loss of an organ but also so certain not to transpire with death. If that condition exists, yes, Idaho law does say that abortions in that case aren’t allowed,” Turner said.
REFERENCE
- Mike Moyle v. United States and Idaho v. United States. Supreme Court of the United States. April 24, 2024. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-726_6jf7.pdf
By the end of June, the U.S. Supreme Court will decide on whether Idaho and other states can require hospitals — through criminal laws — to turn away pregnant women experiencing a major health crisis when the best treatment for them is an abortion to end their pregnancy. Idaho presented a case that their state law preempts the Emergency Medical Treatment and Active Labor Act (EMTALA), and the federal government argued that EMTALA and the mission of protecting patients’ health and lives takes precedence.
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