Supreme Court Seems Split on Biden Mandating Emergency Room Abortions Leon Neal/Getty Images

Supreme Court justices appeared split during oral arguments on Wednesday in a case surrounding the Biden administration’s attempt to require emergency room doctors to perform abortions under the Emergency Medical Treatment and Labor Act of 1986 (EMTALA).

Conservative-leaning justices asked questions around the function and statutory application of EMTALA, while liberal-leaning justices took a more aggressive approach in questioning Idaho about what kinds of health emergencies would qualify a woman for an abortion under state law.

After the Supreme Court overturned Roe v. Wade, which had invented a constitutional right to abortion, the Department of Health and Human Services (HHS) issued guidance claiming that EMTALA requires doctors to perform abortions on patients in emergency rooms when it is “the stabilizing treatment necessary” to help in a medical emergency. Under the guidance, hospitals not in compliance could lose funding and the ability to participate in Medicaid.

After the HHS issued its guidance in July of 2022, the Biden administration sued the State of Idaho over its pro-life law, alleging that it is not in compliance with the federal government’s reading of EMTALA. A district court blocked the state’s pro-life law, an order which the U.S. Court of Appeals for the Ninth Circuit stayed. But within days, the full Ninth Circuit vacated its panel’s stay opinion and granted en banc review (where 11 judges will rehear the case). Idaho then appealed the decision to the Supreme Court.

Idaho argued that Congress did not write EMTALA to require emergency room physicians to perform abortions. Instead, the state argued that the law’s original intent was to prevent “patient dumping,” when hospitals refuse to treat patients who are unable to pay for emergency services. The law, as written by Congress, explicitly requires hospitals to provide stabilizing care for both pregnant women and their unborn babies in emergencies, regardless of whether they are able to pay for services, and makes no mention of abortion.

The United States argued that Idaho’s pro-life law — which makes it a felony for a doctor to perform an abortion unless it is necessary to prevent the death of the mother — is narrower than its reading of EMTALA, and said EMTALA also allows abortions when a woman's health is seriously threatened. It should be noted that Idaho law does not consider removal of a miscarriage or ectopic pregnancy as elective abortion.

Case Highlights

EMTALA's Inclusion of Protections for the Unborn

Justice Samuel Alito pressed U.S. Solicitor General Elizabeth Prelogar on the HHS's insistence EMTALA includes abortion, despite the statute's explicit protections for unborn children.

“Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase 'unborn child?'” Alito asked. 

“And 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,” he added. 

“Most of your argument today has been dedicated to the proposition that the Idaho law is a bad law, and that may well be the case,” Alito said to Prelogar. “But what you're asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there's an obligation under certain circumstances to perform an abortion, even if doing that as a violation of state law.” 

Justice Neil Gorsuch also broached the subject when questioning Idaho Constitutional Litigation and Policy Chief Josh Turner.

“We're not saying, your honor, that EMTALA prohibits abortions,” Turner said. “But I think our point with the unborn child amendment in 1989 is that it would be a very strange thing for Congress to expressly amend EMTALA to require care for unborn children…and yet also [mandate] termination of unborn children.” 

Does HHS Definition of 'Health' Include Mental Health?

“Does the term 'health' in EMTALA mean just physical health, or does it also include mental health?” Justice Alito asked Prelogar, after Turner raised concerns the Biden administration could eventually interpret a broad meaning of “health,” as has occurred with health exceptions to abortion laws previously. 

Prelogar said EMTALA “could never require pregnancy termination as the stabilizing care” because an abortion “wouldn't do anything to address the underlying brain chemistry issue that's causing the mental health emergency in the first place.”

“This is not about mental health generally. This is about treatment by ER doctors in an emergency room. And when a woman comes in with some grave mental health emergency, if she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy,” Prelogar continued. “She might not be in a position to give any informed consent. Instead, the way you treat mental health emergency is to address what's happening in the brain.”

In his rebuttal at the end of oral arguments, Turner argued that the Biden's EMTALA “health” requirement is ultimately “not limited to physical health.”

“I know General Prelogar says that there's no circumstance in which a mental health condition would require stabilization with an abortion, but now she's just fighting with the American Psychiatric Association, the very standards that she's setting up to say controls the EMTALA inquiry,” he said.

Thomas, Alito Skeptical Because EMTALA is About Funding

Justice Clarence Thomas and Justice Alito asked Prelogar why EMTALA, as a Spending Clause, is allowed to preempt criminal law.

“Are you aware of any other Spending Clause legislation that preempts criminal law?” Thomas asked.

Prelogar replied: “With respect to criminal law in particular, Justice Thomas? I'm not immediately thinking of relevant cases.”

Justice Alito asked Prelogar: “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.”

Tracking Prelogar's reasoning, Gorsuch followed up with his own spending clause question, asking whether the federal government could “essentially regulate the practice of medicine and the states through the spending clause?”

“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 pressed. 

“Congress does have broad authority under the spending clause,” Prelogar replied. “And yes, if it satisfies the conditions that the spending clause itself requires, then I think that that would be valid legislation.”

The Hyde Amendment  

Justice Amy Coney Barrett asked Prelogar whether the Hyde Amendment, which prohibits federal funds from being used to pay for abortions, is honored in the Biden administration's interpretation of EMTALA. 

“It is common under EMTALA that hospitals are going to have to provide care where there's not federal funding available,” Prelogar answered.

“The whole point of EMTALA … is it doesn’t matter your circumstances, it doesn’t matter whether you can pay or not. It doesn’t matter the particulars of your situation,” Prelogar said. “This is a guarantee you can get stabilizing treatment.”

Conscience Objections to Abortion 

Turner argued that the federal government extends conscience protection to individual doctors who oppose abortions, but not to hospitals.

“And so in the case of Catholic hospitals, and there are hundreds of them treating millions of patients every year. Under the administration's reading Catholic hospitals who faithfully adhere to the ethical and religious directives are now required to perform abortion,” Turner argued.

Chief Justice John Roberts asked Prelogar to address the allegation, which she denied.

“No, my friend was wrong. There are federal conscience protections that apply at the entity level to hospitals as well,” she replied.

She did further explain that if a hospital continually disobeys the requirement under EMTALA to have sufficient personnel who can provide emergency abortions, she imagines the HHS would ultimately try to bring that hospital into compliance.

“And if the hospital ultimately is just leaving itself in a position where it can never provide care, then it would terminate the Medicare funding agreement,” she said. 

In closing remarks, Turner said Idaho is “relieved to hear” that hospitals are also granted conscience protections. 

“But I think that it highlights the utter inconsistency of the administration's reading,” he added. “So if EMTALA's stabilization requirement is general enough not to override extra-textual protections like conscience protections, then it cannot be so specific and include a requirement that is in direct conflict with state law.”

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