Here’s what to watch for on argument day.
The central issue. Welcome to the world of federal “preemption.”
The Idaho abortion case involves a federal law and a state law. The issue is whether the state law, Idaho’s Defense of Life Act, conflicts with the federal law, the Emergency Medical Treatment and Labor Act (EMTALA), a
provision of the federal Medicare Act. If the state law is a direct conflict, then federal law preempts it — blocks it — because federal law is supreme.
The justices are very familiar with preemption analysis. Expect them to press the lawyers on each side about how the two laws conflict by parsing the language and requirements of both.
The Idaho law makes it a crime punishable by up to five years in prison for anyone who performs or attempts to perform an abortion. The only exceptions are abortions to prevent the death of the woman, to end ectopic and molar pregnancies, and some resulting from rape and incest. But EMTALA requires Medicare-participating hospitals that offer emergency services to provide stabilizing treatment for patients with emergency medical conditions, and an abortion may be necessary to treat a condition that falls outside of Idaho’s exceptions to abortion.
What is the meaning of EMTALA’s requirement to provide stabilizing emergency care?
Idaho
argues in its brief that EMTALA, enacted in 1986, was designed to deal with so-called “patient dumping.” Some hospitals were discharging or transfering severely ill patients because they had no insurance. EMTALA says nothing about abortion, has no standard of medical care and would turn emergency rooms into abortion clinics in violation of state law, according to the state’s brief.
“EMTALA merely prohibits emergency rooms from turning away indigent patients with serious medical conditions,” Idaho argues. “Rejecting the identical arguments advanced here, the Fifth Circuit recently held that ‘EMTALA does not mandate any specific type of medical treatment, let alone abortion.’”
The United States counters in its brief that EMTALA has a broader scope than Idaho contends.
The act states that when “any individual comes to a [participating] hospital” with an “emergency medical condition,” the hospital must offer such treatment “as may be required to stabilize the medical condition.”
“For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy,” the United States argues. “In those circumstances, EMTALA requires participating hospitals to offer such care — yet Idaho law forbids it. EMTALA accordingly preempts state laws like Section 18-622 to the extent they prohibit the essential medical care required by federal law.”
What will the women justices say?
The Idaho abortion case is the second abortion case of the term. The justices already
heard arguments in a challenge to the abortion drug mifepristone. Medication abortion is now the method used in
more than half of all abortions. During those arguments, it was particularly striking how the court’s four women justices were so clearly better informed about the medical side of abortion and the female body than their male counterparts. If they had not been present, key insights and information would have been absent. Expect them to play an important role if not on the bench then in the later conference discussion as well.
If the conservative majority that eliminated the abortion right in Dobbs v. Jackson Women’s Health Organization thought that returning the legality of abortion to the states would make the court — in the words of Justice Brett Kavanaugh —
“neutral” on the issue, then after this term they must realize that it was wishful thinking.
