On Emergency Abortion Access, Justices Seem Sharply Divided (2024)

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5 takeaways from the Supreme Court argument on Idaho’s abortion ban.

The implications of the case could also extend beyond abortion, including whether states can legally restrict other types of emergency medical care and whether the federal law opens the door for claims of fetal personhood.

Here are some takeaways:

The case centers on whether Idaho’s abortion ban violates federal law.

Idaho’s ban allows abortion to save the life of a pregnant woman, but not to prevent her health from deteriorating. The federal government says it therefore violates the Emergency Medical Treatment and Labor Act, or EMTALA, which was enacted nearly 40 years ago.

EMTALA says that when a patient goes to an emergency room with an urgent medical issue, hospitals must either provide treatment to stabilize the patient or transfer the patient to a medical facility that can, regardless of the patient’s ability to pay. It says that if a state law conflicts with the federal law, the federal law takes precedence.

A lawyer representing Idaho, Joshua Turner, told the Supreme Court that the state does not believe its abortion ban conflicts with the federal law. He said the ban allows emergency departments to provide abortions if a pregnant woman has a medical problem that is likely to lead to her death, not just if she is facing imminent death.

The three liberal justices strongly objected to Mr. Turner’s interpretation and pointed out situations in which women in critical situations would be denied abortions under Idaho’s ban. When Justice Sonia Sotomayor asked if the ban would prevent abortion in a situation where a woman would otherwise lose an organ or have serious medical complications, Mr. Turner acknowledged that it would. “Yes, Idaho law does say that abortions in that case aren’t allowed,” he said.

The real-world consequences of Idaho’s ban for abortion and other medical care were apparent.

Solicitor General Elizabeth B. Prelogar, representing the federal government, said Idaho’s abortion ban, which was allowed to take effect this year, had significant consequences for pregnant women and emergency room doctors.

“Today, doctors in Idaho and the women in Idaho are in an impossible position,” she said. “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.”

Justice Samuel A. Alito Jr., one of the most conservative justices, asserted that the federal government and the liberal justices were giving hypothetical examples. But Justice Elena Kagan, a liberal, noted that the hospital with the most advanced emergency room services in Idaho had needed to transfer six women to other states for emergency abortions so far this year.

There was also discussion about potential consequences for other types of medical care if Idaho’s ban was allowed to stand. Justice Sotomayor said that would allow states to pass laws saying “don’t treat diabetics with insulin, treat them only with pills,” contradicting the best medical judgment of a doctor who “looks at a juvenile diabetic and says, ‘Without insulin, they’re going to get seriously ill.’”

Conservative justices raised questions about fetal rights.

Justice Alito, in particular, focused on the fact that EMTALA includes several mentions of the phrase “unborn child.”

“Doesn’t that tell us something?” he asked. He suggested that it meant that “the hospital must try to eliminate any immediate threat to the child,” and that “performing an abortion is antithetical to that duty.”

That was an argument that supports efforts by abortion opponents to establish “fetal personhood” rights and declare that life begins at conception. Idaho’s lawyer, Mr. Turner, said on Wednesday that “there are two patients to consider” when pregnant women seek emergency room care.

The federal government has pointed out that three of the four mentions of “unborn child” in EMTALA refer only to when a woman in labor might be transferred to another hospital.

Ms. Prelogar described the intent of the fourth reference to “unborn child,” which was added to the law later. She said it referred to situations in which a pregnant woman goes to an emergency room and her pregnancy is in danger but her own health is not currently at risk. In that case, the law would require hospitals to do what they could to save the pregnancy. That would not be a situation where an abortion would be provided, she said.

Ms. Prelogar also emphasized that usually in the kinds of pregnancy emergencies in which an abortion is typically required, there is no possibility for a live birth. “In many of these cases, the very same pregnancy complication means the fetus can’t survive regardless,” she said. “There’s not going to be any way to sustain that pregnancy.”

In such cases, she said, “what Idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health consequences with no possible upside for the fetus. It stacks tragedy upon tragedy.”

The U.S. government disputed conservative claims that the federal law allows abortion for mental health emergencies.

Mr. Turner said that EMTALA would allow emergency rooms to provide abortions for pregnant women who are experiencing depression and other mental health issues. Abortion opponents have said that this could be used as a loophole to allow many patients to obtain abortions despite state bans.

Justice Amy Coney Barrett, another conservative, expressed some skepticism about Idaho’s claim. Justice Alito pressed the solicitor general about it.

“Let me be very clear about our position,” Ms. Prelogar replied. “That could never lead to pregnancy termination because that is not the accepted standard of practice to treat any mental health emergency.”

She said antipsychotic drugs and other psychiatric treatments would be administered to such patients. The treatment would not be abortion, she said, because “that won’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place.”

The federal emergency care law doesn’t require doctors who are morally opposed to abortion to provide them, the government said.

Justice Barrett and Chief Justice John G. Roberts Jr. asked if EMTALA’s requirement for emergency medical care prevented emergency room doctors or hospitals with moral or religious objections from opting out of providing abortions.

The solicitor general said that federal conscience protections take precedence. So individual doctors can invoke conscience rights to avoid providing abortions, Ms. Prelogar said. And although she said it would be rare for an entire hospital to invoke a moral objection to terminating pregnancies in the kinds of medical emergencies that EMTALA applies to, hospitals with such objections could opt out as well.

Protesters on both sides of the abortion debate clash outside the Supreme Court.

Only a dozen or so brandished signs that read “Emergency rooms are not abortion clinics” and “Abortion betrays women.” Rival protesters got in their faces with shouts and signs of their own, including one that read, “Emergency abortion is essential healthcare.” A large white banner proclaimed “SCOTUS is illegitimate.”

The case pits an Idaho law against a federal law requiring hospitals to provide emergency health care. The Idaho law bars doctors from providing abortions unless a woman’s life is in danger or in certain nonviable pregnancies.

Mylissa Farmer, 43, who the federal government found was denied necessary stabilizing care in Missouri and Kansas after her water broke at 17 weeks, told other demonstrators that the federal law should be upheld to protect women who faced complications like hers.

In an interview beforehand, Ms. Farmer said that the complications of her pregnancy prompted her involvement in politics and that the legal battles over reproductive rights have compounded her pain. “I just don’t want anyone else to go through what I did,” she said. “That’s why I’m speaking out, because it’s so wrong, and I don’t see any kind of light.”

Many opposing protesters emphasized that Idaho’s law was intended to protect women as well as children.

Bethany Janzen, the founder of Pro-Life Global, denounced the federal law, Emergency Medical Treatment and Labor Act, or EMTALA, saying what it would do is “essentially make our hospitals and emergency rooms abortion clinics.”

“It’s creepy to see men advocate for abortion,” one anti-abortion speaker, a woman, said into a microphone, prompting a group of men favoring abortion to break off and try to drown her out. Some included residents from the nearby George Washington University Hospital, wearing scrubs and lab coats.

Before arguments were even underway, more than a dozen women, representing the number of states where restrictive abortion bans are in effect, lay on the pavement, draped in sheets that were bloodied at the abdomen.

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Behind the language used during the argument is the goal of the anti-abortion movement.

The lawyer for Idaho and the conservative justices including Samuel A. Alito Jr., who wrote the majority opinion overturning Roe v. Wade, employed the term “unborn child,” a term used in the federal law at issue. The lawyer for the Biden administration tended to say “fetus.”

It was not merely a matter of semantics: Anti-abortion groups argue that life begins at conception. They have long pushed to establish so-called fetal personhood laws, granting fetuses the same legal rights and protections as any person, in the hopes that it would establish that abortion at any point in pregnancy is murder.

Roe v. Wade stood in their way for five decades, prohibiting states from banning abortion before fetal viability, or roughly 24 weeks. But since the Supreme Court overturned that decision in June 2022, laws establishing fetal personhood have taken effect in Georgia and other states. And anti-abortion lawmakers in Congress and in state legislatures have pushed other measures that establish fetal personhood through a variety of means: giving tax credits for fetuses, for example, or requiring child support payments beginning at conception.

Legal scholars warn that laws establishing fetal personhood would go farther than even existing abortion bans, ruling out all or most of the exceptions that those bans allow. If life begins at conception, that would include pregnancies that result from incest or rape.

Abortion rights groups and the American College of Obstetricians and Gynecologists use “embryo” when talking about pregnancies up to eight weeks after the start of a woman’s last menstrual period, and “fetus” to describe anything between that and delivery. (ACOG guidelines say: “Centering the language on a future state of a pregnancy is medically inaccurate.”)

Justice Alito relied on the language of fetal personhood in writing the decision overturning Roe, citing several 19th-century state laws referring to “unborn children.”

On Wednesday, he pressed the solicitor general repeatedly on the question of the “unborn child.” He noted that the federal law regulating emergency care — the law at issue in the Idaho case — uses the phrase several times. That, he said, suggests that the federal law means that “the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty.”

Elizabeth Prelogar, the solicitor general, replied that the law used that phrase to refer to cases in which the health of the pregnancy was in danger; the Idaho case concerns emergency health risks to the mother. The lawyer for Idaho, however, argued that doctors have to consider the life of the “unborn child” as much as the rights of the pregnant woman, even when she is facing an emergency risk to her health.

Anti-abortion lawmakers and groups have said that fetal personhood laws are the first step toward their ultimate goal of establishing constitutional protection for life beginning at conception.

But even many voters who oppose abortion in whole or in part have rejected attempts to establish fetal personhood. Voters rejected initiatives twice in South Dakota, in 2006 and 2008, and in Mississippi in 2011. Doctors in those states warned that establishing fetal personhood would criminalize IUDs and other methods of birth control. They also warned that they would have to stop doing in vitro fertilization, because disposing of unused fertilized eggs, or selectively eliminating implanted eggs, as many aspiring parents do, could result in murder charges.

What’s next: A decision will probably land in late June.

The case was among the last to be argued this term, meaning that it would almost certainly not be decided until late June, when the term typically ends.

But there is even more reason to think that the decision will come then, or perhaps in early July, as the Supreme Court is facing a formidable backlog of pending decisions in major cases. Among them are ones on the fate and scope of the prosecution of former President Donald J. Trump for plotting to subvert the 2020 election, the First Amendment rights of social media companies and the power of administrative agencies.

The justices are also considering a second abortion case, on the availability of a commonly used pill to terminate pregnancies.

In an ordinary term, the two abortion cases would be among a small handful of blockbusters. This year, it will be one of many that are set to land, one after another, in a hectic few weeks in early summer.

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Maternity care suffers as abortion laws drive obstetricians from red states.

Dr. Gustafson says those and other departures of labor and delivery doctors in the state have made a bad situation worse, depriving both patients and doctors of moral support and medical advice.

“I wanted to work in a small family town and deliver babies,” she said. “I was living my dream — until all of this.”

Idaho’s obstetrics exodus is not happening in isolation. Across the country, in red states like Texas, Oklahoma and Tennessee, obstetricians — including highly skilled doctors who specialize in handling complex and risky pregnancies — are leaving their practices. Some newly minted doctors are avoiding states like Idaho.

The departures may result in new maternity care deserts, or areas that lack any maternity care, and they are placing strains on physicians like Dr. Gustafson who are left behind. The effects are particularly pronounced in rural areas, where many hospitals are shuttering obstetrics units for economic reasons. Restrictive abortion laws, experts say, are making that problem much worse.

“This isn’t an issue about abortion,” said Dr. Stella Dantas, the president-elect of the American College of Obstetricians and Gynecologists. “This is an issue about access to comprehensive obstetric and gynecologic care. When you restrict access to care that is based in science, that everybody should have access to — that has a ripple effect.”

Idaho doctors operate under a web of abortion laws, including a 2020 “trigger law” that went into effect after the Supreme Court eliminated the constitutional right to abortion by overturning Roe v. Wade last year. Together, they create one of the strictest abortion bans in the nation. Doctors who primarily provide abortion care are not the only medical professionals affected; the laws are also impinging on doctors whose primary work is to care for expectant mothers and babies, and who may be called upon to terminate a pregnancy for complications or other reasons.

The Biden administration considers the federal EMTALA law key to preserving abortion access.

The Biden administration soon issued a memorandum saying EMTALA, which requires that all patients have emergency care, should also ensure hospitals provide abortions in cases in which the procedure would be necessary to stabilize a patient.

“If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment,” the memo, by the Department of Health and Human Services, said.

Texas sued the federal government after the memo was issued, while the Idaho case before the Supreme Court was initiated by the Biden administration.

The Biden administration also told hospitals in Missouri and Kansas that they had not provided “necessary stabilizing care” required by EMTALA when they denied an abortion to Mylissa Farmer, whose water broke at 17 weeks’ gestation, less than halfway through the pregnancy. Even though she was told she could suffer severe infection and lose her uterus if her pregnancy was not aborted, doctors would not agree to the procedure. She was forced to travel to Illinois.

As it fights in court, the Biden administration has encouraged those in need of an abortion to better understand EMTALA.

Last May, the secretary of health and human services, Xavier Becerra, sent letters to hospitals across the nation reminding them they were obligated to abide by EMTALA when it comes to abortion care.

In January, the Department of Health and Human Services issued more guidance for patients experiencing pregnancy-related injuries to understand their rights under the law. The department also provided training materials to health care providers on the law.

The Justice Department has also said it is monitoring states’ efforts to punish those who cross state lines to receive abortion care.

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There are markedly fewer anti-abortion protesters, about a dozen, with signs with phrases including “Abortion betrays women.” But they are just as loud. “What this law would do is it essentially make our hospitals and emergency rooms abortion clinics,” Bethany Janzen, 30, said of the federal law. “And that’s a problem.”

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Idaho’s argument for the “unborn child” assumes that life begins at conception. But even anti-abortion voters have been reluctant to affirm this, because the consequences can be so far-reaching. In Mississippi, for example, considered one of the most anti-abortion states in the country, voters rejected a 2011 ballot measure establishing “fetal personhood” after doctors warned they would be prosecuted for doing in vitro fertilization, because they destroy embryos that are not successfully implanted.

In a statement urging the court to rule against the state, the group said: “In many of these emergency situations, the only way to treat or stabilize a patient is to end the pregnancy that is complicating or threatening their health. Because of this, EMTALA’s protections must cover abortion care so that access to lifesaving emergency care does not depend on a person’s zip code.”

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Abortion restrictions have changed the medical care in emergency rooms, too.

“A lot of us go into emergency medicine because of the imperative to take care of every patient — the person without housing and a C.E.O. — and we’re really proud of that ethical obligation to say, ‘Here’s the patient in front of me and I’m going to do everything I can for them,’” said Dr. Alison Haddock, an emergency physician in Houston and chair of the board of the American College of Emergency Physicians. Now, she said, “We’re no longer basing our judgment on the clinical needs of the woman, we’re basing it on what we understand the legal situation to be.”

Physicians would more typically talk to hospital lawyers about guardianship when caring for elderly or psychiatric patients, Dr. Haddock said. Now, when patients arrive with ectopic pregnancies, miscarriages or hemorrhaging — all situations where abortion has been established as standard care — the questions for the lawyers are more pressing: “Do we wait until the fetus is definitely dead, or is mostly dead good enough?” she asked. “If they’re telling us to wait for the condition to be fully emergent, how much bleeding is too much?”

“Having to consult a lawyer in an emergent situation is a whole new ballgame,” she said.

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The Supreme Court said it was done with abortion. Its docket says otherwise.

The Supreme Court, Justice Alito said, was getting out of the business of deciding abortion cases.

Things have not turned out that way. In the space of just a month this spring, the court will have heard arguments in two important cases on access to abortions.

In March, the justices considered an effort to curtail a widely used abortion pill, part of the most common way to terminate pregnancies. If the court rules that the Food and Drug Administration acted unlawfully in approving the medication, people in states that continue to allow abortion would face major hurdles in obtaining it.

Put another way, the will of the people and their elected representatives in states that have decided to allow abortion would be thwarted.

Questions from the justices in March suggested that they would avoid the central issue in the case, ruling instead that the anti-abortion doctors and organizations who challenged the agency’s approval of the pill had not suffered the sort of direct injury that gave them standing to sue. Such a ruling would be a victory for proponents of abortion rights, but a provisional one, as other challenges could follow.

Wednesday’s argument illustrates a second way in which the Supreme Court cannot avoid abortion cases by returning the question to legislatures. That is because those bodies can be at odds, leaving it to the justices to resolve clashes.

The case concerns Idaho’s near-total ban on abortions, enacted by its Legislature, which the Biden administration said conflicted with a federal statute, enacted by Congress, that allowed for some exceptions.

Judge B. Lynn Winmill of the Federal District Court in Boise entered a preliminary injunction partly blocking the state law in 2022.

“It’s not about the bygone constitutional right to an abortion,” he wrote. “The court is called upon to address a far more modest issue — whether Idaho’s criminal abortion statute conflicts with a small but important corner of federal legislation. It does.”

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The consequences of the court’s decision could reverberate beyond Idaho.

The decision by the justices, which is expected by the end of the term in late June or early July, may have repercussions outside Idaho. A decision there could affect more than a dozen other states that have passed near-total bans on abortion since the court’s 2022 decision, Dobbs v. Jackson Women’s Health Organization.

Idaho’s abortion law is one of the most stringent in the country. But the state and those who have filed friend-of-the-court briefs in its support argue that the Biden administration’s approach is a thinly disguised way to circumvent the Supreme Court’s decision to overturn Roe v. Wade and to continue to allow access to abortion across the country.

A ruling for the Biden administration would most likely solidify the ability of doctors in emergency rooms, even those in states with strict anti-abortion laws, to provide abortions in cases where they believe the procedure is necessary to stabilize a woman’s health, whether or not her life is in danger.

A ruling for Idaho may spur other states to enact similarly strict measures. Many emergency room doctors and medical groups in the state have also voiced concern that siding with Idaho would also aggravate a growing shortage of doctors in the state. According to federal data, almost all counties there do not have enough primary care doctors, and the state ranks near the bottom in doctors per capita.

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The federal law came about in part because of how pregnant women were treated in emergency rooms.

The federal government says Idaho is misinterpreting that language and argues that Idaho’s ban violates the 1986 federal law: the Emergency Medical Treatment and Labor Act or EMTALA. The law requires that emergency departments provide stabilizing care not only to patients facing imminent death, but patients whose health would otherwise deteriorate. If emergency departments cannot provide care, they must transfer patients to hospitals that can.

EMTALA’s references to pregnancy were intended to address concerns at the time it was enacted. The law’s purpose was to prevent “patient dumping” — hospitals turning away people who could not pay or lacked health insurance.

At the time, private hospitals sometimes turned away seriously ill or injured patients who couldn’t pay, including victims of stabbings or shootings and people with severe infections or internal bleeding. In Texas, which enacted a state anti-dumping law a year before the federal one, a man with third-degree burns stumbled into a county hospital trailing a catheter and intravenous line inserted by a private hospital that had ejected him.

There were alarming cases involving pregnant women in labor jettisoned from private hospitals before their babies could be born. “It was sometimes so egregious to see how people came in,” Dr. Ron Anderson, then the chairman of the Texas board of health and chief executive of a county hospital in Dallas called Parkland Memorial, recounted in an oral history.

“I remember a young woman in labor who was sent to Parkland from another hospital — a religiously-affiliated hospital,” he said. “When she told them that she was so glad that they would still see her even though her husband had lost his job, they pushed her legs together, started an IV, and sent her to Parkland. She was crowning — the baby was coming any minute. She delivered in the hallway at Parkland.”

The federal law was originally titled “The Emergency Medical Treatment and Active Labor Act” because Congress was concerned about women who were about to give birth, said Sara Rosenbaum, a professor emerita of health law and policy at the George Washington University who has worked on and studied EMTALA since its inception. “Active” was removed from the title in 1989 because hospitals were sending away women in labor if their contractions were more than five minutes apart, she said.

Professor Rosenbaum said “labor and delivery really was a dominant issue” because childbirth was the main reason poor or uninsured pregnant women would go to emergency rooms. Abortion was legal under Roe v. Wade, and complications earlier in pregnancy that might require an abortion to stabilize a woman’s health were not specifically mentioned in the law, but were covered by the general language applying to all emergency medical conditions, she said.

EMTALA mentions “delivery” as one way to stabilize a woman in labor. It also says that risks to “the health of the unborn child” should be minimized when emergency departments decide whether to transfer laboring patients elsewhere.

Idaho cites that language in briefs, writing that “EMTALA requires hospitals to care for an unborn child” and that EMTALA “underscores the importance of caring for the unborn child while indicating that other specific treatments are not required.”

The federal government disputes that interpretation, writing in briefs that three of EMTALA’s four references to considering the health of an “unborn child” refer only to when a woman in labor might be transferred. The fourth reference was added later to require stabilizing care if a pregnant woman goes to an emergency room with an urgent problem that could impair her fetus, but not her own health, the federal government said.

But, it said, that did not eliminate a hospital’s obligation to provide abortions “when termination of the pregnancy is required to save the woman’s life or prevent serious harm to her health.”

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