‘Doctors have to shut their eyes to everything except death’: Supreme Court appears split during intense fight over state abortion ban in emergency situations

Left to right: An attendee at Planned Parenthood’s “Bans Off Our Bodies” rally for abortion rights holds a sign outside of the Idaho Statehouse in downtown Boise, Idaho, May 14, 2022. (Sarah A. Miller/Idaho Statesman via AP); the U.S. Supreme Court 2011 file photo. (AP Photo/J. Scott Applewhite); a doctor performs an ultrasound scan on a pregnant woman on Aug. 7, 2018, at a hospital in Chicago (AP Photo/Teresa Crawford)

On Wednesday, the U.S. Supreme Court weighed the consolidated cases of Moyle v. United States and Idaho v. United States, considering the contentious question of whether hospitals must provide abortions in emergency situations in Idaho after long-standing protections under Roe v. Wade were overturned two years ago.

Idaho‘s near-total abortion ban went into effect shortly after Roe was reversed and the Supreme Court opted to uphold the state ban as this legal fight with national implications played out. The only exceptions in Idaho are ectopic pregnancies and to prevent the death of the pregnant woman, and there are some exceptions for rape and incest.

As Law&Crime previously reported, the Biden Administration through Justice Department attorneys argue that a 1986 law known as the Emergency Medical Treatment and Labor Act (EMTALA) can and does, under certain emergency circumstances, override state bans like Idaho’s that criminalize abortion providers, threaten their medical licenses and impose a two-year mandatory minimum — and five-year maximum — sentence if convicted.

EMTALA states that emergency room providers are required to “stabilize” people when they present with a health emergency. But Idaho argues that the Justice Department interpretation on this is wrong and when it comes to abortion, it proposes boundless federal overreach that attempts to backdoor abortion procedures where they are outlawed.

As The Associated Press noted ahead of oral arguments and as Justice Elena Kagan cited Wednesday from the bench, since the restrictions in Idaho went into effect, hospitals there have had to fly patients requiring an abortion to stabilize their health out of the state on no less than six occasions.

Solicitor General Elizabeth Prelogar, arguing for the government, said it was “once a week every other week” since the ban went into effect.

What Idaho has now achieved with its ban violates medical health care standards nationally, she argued.

“Doctors,” Prelogar said Wednesday, “have to shut their eyes to everything except death.”

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

EMTALA’s existence should preclude such an extreme scenario.

“No matter where you are in this country, if you have a medical need, you can be stabilized,” she argued.

In its reply brief to the high court earlier this year, the government noted that pregnant patients can show up to the emergency rooms “suffering from nonlethal conditions — including infections, preeclampsia or premature preterm rupture of membranes — for which pregnancy termination is the stabilizing care required to avoid grave harm like strokes, sepsis or kidney failure.”

After Idaho enforced its near absolute ban in 2022, the Justice Department sued to stop it from going into effect and initially won. A federal judge agreed to stop the ban from being enforced but only in the way that it would run afoul of the 1986 law assuring patients fair access to treatment. Once the case was advanced to the Ninth Circuit Court of Appeals, a ruling was issued making it so the state could not put the lower court’s decision on hold pending appeal. This January, when the matter first went to the Supreme Court, the justices turned the victory back over to Idaho temporarily and the state’s abortion ban was allowed to go into effect in the meantime.

Idaho’s lawyer Josh Turner was awash with tough questions on Wednesday and often found himself interrupted as Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would stop him sharply to quickly poke or prod his claims with examples from existing case law as well real-life examples.

Kagan, Sotomayor and Jackson appeared disturbed by Turner’s contention that certain medical conditions did not necessarily mean abortion was the appropriate standard of care when the ban allows the leaving of that decision to “good faith medical judgment.”

But that “good faith” is “the standard of care,” Turner said.

Kagan rebuffed him.

“I think you have to concede the abortion is the standard of medical care because your own statute acknowledges that when a condition gets bad enough, such that a woman’s life is in peril, then doctors are supposed to give abortions. And the reason is true, with respect to certain rare conditions, but obviously important conditions and circumstances, that abortion is the accepted medical standard of care, isn’t that right?” Kagan said.

Turner agreed but said only if there was a “lifesaving exception.”

Sotomayor broadcast her thinking:

The problem we’re having right now is you are putting preemption on its head. The whole purpose of preemption is: if a state passes a law that violates federal law, the state law is no longer effective. There is no state licensing law that would permit the state to say ‘don’t treat diabetics with insulin, only pills like Metformin’ and says, without insulin, they are going to get seriously ill and we believe this a better treatment. Federal law would say you can’t do that.

Objective medically accepted standards of care require the treatment of diabetics with insulin. The medically accepted obligation of doctors when they have women with certain conditions that may not result in death, but more than likely will results in very serious medical conditions including blindness for some, the loss of organs, for some, chronic blood strokes — Idaho is saying unless the doctor can say in good faith that this person’s death is likely, as opposed to serious illness, they can’t perform the abortions.

Idaho argues the Biden administration’s reading of EMTALA is “wholly untenable” because it leaves “emergency rooms unregulated” and threatens to overstep state medical licensing laws.

The federal government reminded during oral arguments, however, that in some pregnancy emergencies where abortion is required, there isn’t even a chance the baby will be born. Where Idaho may argue that is it providing medical care with lifesaving exceptions, it amounted to a potentially fatal game of semantics that increases the likelihood that places like Idaho become maternity care deserts.

Doctors are realizing they can lose their livelihoods, and their freedom, “simply because they cannot provide care, even care consistent with good medical judgment because as a matter of medical reality, it is not yet [a situation where they] are putting a woman at the brink of death but they know the standard of care is to provide her with termination because they know she is just going to get worse and worse and worse if they wait it out,” Prelogar argued.

“Tragically, in many of these cases, there’s not going to be anyway to sustain pregnancy. In those situations, they are waiting for women to deteriorate and suffer the lifelong health consequences … stacking tragedy upon tragedy.”

Those consequences can include loss of organs and permanent damage — including losing the ability to have children ever again.

Conservative justices like Samuel Alito and Neil Gorsuch seemed dubious of the federal government’s arguments, with Alito zeroing in on language in the emergency care laws about the “unborn child.”

Alito asked Prelogar: If there is an emergency medical condition and that condition is “defined to include a condition that places the health of the woman’s unborn child in serious jeopardy,” wouldn’t it be up to the hospital to first “stabilize the threat to the unborn child”? Alito asked Prelogar whether the “the plain meaning” is that is the hospital must eliminate any threat to the child.

“That stabilization obligation equally runs to her and says the hospital must stabilize her,” the solicitor general said.

If Congress wanted to “displace protections for women in danger of losing their own lives or health, they could redefine the statute” to describe what a fetus is, she proffered.

Alito, however, seemed miffed at the suggestion, saying the government could “only get out of this by focusing on the term ‘individual’” in the law because it was otherwise asking the high court to construe a statute written during the Reagan administration to mean there is an obligation to perform an abortion even if it’s a legal violation. This prompted crosstalk about who should receive care first in the emergency room, the woman carrying the fetus or the fetus and the justice seemingly felt the need to declare his position to the solicitor general.

“Of course the duty runs to the individual with the emergency medical condition. The statute makes clear that’s the woman and of course Congress wants to protect her,” he said.

Notably, federal law already protects doctors with moral objections to performing abortions. And typically, hospitals staff themselves so that there is always someone available to perform a procedure should someone else object.

Besides Gorsuch, Justices Brett Kavanaugh and Clarence Thomas seemed inclined to rule in favor of Idaho. With Kagan, Jackson and Sotomayor appearing to favor the government, the final consequential vote will likely come down to Chief Justice John Roberts and Justice Amy Coney Barrett. Barrett was one of five justices who voted to overturn Roe v. Wade.

On Wednesday, she seemed less fired up than her liberal colleagues; but along with Alito asked Turner questions about doctors performing abortions for a patient who presents with a mental health emergency and not a physical one. This is often a prospect raised by anti-abortion advocates, but Prelogar was adamant that this hypothetical wasn’t even worth considering.

“There can be grave mental health emergencies but EMTALA could never require abortion as stabilizing care,” the said. “It wouldn’t address underlying brain chemistry issues. This isn’t about mental health. This is about treatment by emergency doctors in an ER and if a woman came in with a mental health emergency, it would be incredibly unethical to terminate pregnancy. If she’s having a psychotic episode, you administer medication.”

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‘Doctors have to shut their eyes to everything except death’: Supreme Court appears split during intense fight over state abortion ban in emergency situations

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‘Doctors have to shut their eyes to everything except death’: Supreme Court appears split during intense fight over state abortion ban in emergency situations

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