On Wednesday, the Supreme Court looks at a new and serious conflict arising out of the loss of the constitutional right to abortion. The hearing will test whether a 38-year-old federal law can be used to block state laws that ban or strictly limit abortion – at least when a pregnant woman’s health becomes an emergency.
This term of the Court is the first in which the Justices have reviewed sequels to the June 2022 decision in Dobbs v. Jackson Women’s Health Organization, turning abortion control over to state governments. That ruling led to a rapidly spreading number of emergencies for pregnant women living in states that had put into effect strong anti-abortion laws.
In some states – Texas, for example – several women have been close to death when doctors refused to perform an abortion for fear of being prosecuted or losing their licenses to practice.
Last month, the Court examined the controversy over access to medication used to induce abortion without surgery, including access in states with abortion restrictions. That case has not yet been decided. Tomorrow, the Court confronts a direct conflict between state anti-abortion laws and a federal law that assures emergency care in hospitals.
Wednesday’s hearing (two cases combined): Moyle v. United States and Idaho v. United States The hearing is the only one scheduled for the day; it will begin at 10 a.m.
Background: This controversy has deep roots in American history, back to the writing of the Constitution in Philadelphia in 1787. The convention delegates were determined to fix a problem that had bedeviled the young nation under the Articles of Confederation. The states were the most powerful part of government under the Articles and they were often squabbling. A weak Congress had almost no power to act on behalf of the whole nation.
So, the Founders wrote into the Constitution Article VI – the “Supremacy Clause” – guaranteeing that national laws would be supreme over conflicting state laws. That arrangement caused little controversy in Philadelphia but became a source of deep discontent in state conventions that considered whether to ratify the new document.
Once ratification was complete, the new government took office and Congress moved promptly to limit some of the new national government’s powers under a Bill of Rights, which became the first ten amendments in 1791. The Tenth Amendment assured the states that they would retain all of the governing power that had not been assigned specifically to the national government.
Wednesday’s hearing echoes these beginnings, with a state relying on the Tenth Amendment and the federal government on Article VI.
The conflicting laws at issue: Both sides in this controversy were ready to act when the Supreme Court decided the Dobbs case. A draft of that ruling had mysteriously been leaked, months before a final ruling emerged. When the final decision came out, it was changed little from the draft, so its meaning was clear immediately.
Idaho was one of 13 states that already had enacted laws that would go into effect if the 1973 abortion rights ruling in Roe v. Wade were overruled. In 2020, the Idaho legislature had passed the “Defense of Life Act,” which included one of these so-called “trigger” laws, ordering it into effect a month after a ruling to end abortion rights under the U.S. Constitution.
That state has a long history of opposing abortion, dating back to 1864 when it was a U.S. territory. After gaining statehood, it kept an anti-abortion law on its books until 1973, when it repealed it in response to the Roe decision.
Within days after the Dobbs ruling, abortion rights advocates in Idaho tried to salvage the choice to seek abortion in that state by asking the Idaho Supreme Court to recognize such a right under the state constitution. The state court refused, opting instead to uphold the “trigger” law and two other state laws restricting the procedure.
The result is that Idaho today has a law banning abortion in all stages of pregnancy, with exceptions when necessary to save the life of the pregnant woman or to protect victims of rape or incest (if they had reported the attacks to police). Also remaining in force there are separate laws banning the procedure after six weeks of pregnancy (which can be enforced by private individuals or groups) and banning abortions after a fetus reaches an age when it would be able to survive if delivered alive.
Meanwhile, in Washington, D.C., President Biden and his Cabinet, with months to prepare a federal response to the expected Dobbs ruling, moved quickly. The President issued an Executive Order directing a government-wide effort to keep abortion available.
The U.S. Department of Health and Human Services promptly issued what it called “clarifying guidance” on how it would enforce the Emergency Medical Treatment and Labor Act (now usually referred to as simply “EMTALA”). Congress had passed that law in 1986 to try to stop what was called “patient dumping,” a practice by some hospitals of refusing to screen or to treat patients who could not pay for emergency medical services.
EMTALA applies to hospitals that have emergency departments and accept patients who have federally-subsidized Medicare insurance (for the elderly and for disabled patients). For any patient who arrives in an “emergency medical condition” – defined as having “acute medical symptoms” that put the patient’s health at serious risk if left untreated – the hospital must screen the patient and then provide “stabilizing treatment.” If the patient is a pregnant woman, the law requires stabilization of both the woman and, if possible, a fetus she is carrying.
Hospitals that violate EMTALA may face fines of $100,000 for each violation and the loss of Medicare funding. Doctors who violate the requirements may face fines and exclusion from participation in Medicare programs.
The law does not provide details of the treatment that must be provided in these emergency situations, so it does not specify abortion as a medical option. Under HHS’s new guidance, however, hospitals and emergency room doctors are told specifically that stabilizing treatment may require abortion when that is medically advisable.
HHS also included this directive: “If a state law prohibits abortion and does not include exceptions for the health and life of the pregnant person – or draws the exception more narrowly than EMTALA’s emergency medical definition – that state law is preempted.” (Legally, preemption means that EMTALA overrides any conflicting state law.)
Details of this lawsuit: In early August 2022, before Idaho’s “trigger” law was set to go into effect, the U.S. Justice Department sued the state in federal court in Boise, seeking an order to block enforcement. The state government, the stage legislature, and legislative leaders entered the case to defend the state’s “Defense of Life Act.”
A federal trial judge found that “it is impossible to comply” with both the state law and EMTALA, which the judge interpreted to require a doctor to perform an abortion when that would be the appropriate “stabilizing treatment.” The judge cited medical findings that EMTALA would require abortion as necessary care when a patient in an emergency room faces these risks: uncontrolled bleeding, potential kidney failure, infection surrounding the fetus that could lead to “sepsis,” or a condition that threatens seizures or brain injury.
As a result, the judge imposed a temporary order barring enforcement of Idaho’s conflicting law while the lawsuit unfolded further in lower federal courts. After some complex maneuvering in a federal appeals court, the judge’s order was put into effect.
State officials and leaders of the legislature asked the Supreme Court to step in and allow enforcement of state law. The state argued that the court order against enforcement “turns EMTALA protection for the uninsured into a federal super-statute on the issue of abortion, one that strips Idaho of its sovereign interest in protecting innocent human life and turns emergency rooms into a federal enclave where state standards of care do not apply.”
The state noted that there is now a disagreement among federal appeals courts on the scope of EMTALA and its application to state abortion restrictions. The Supreme Court in January put the lower court order on hold, turned the two cases into full appeals, granted review of both and set this hearing for April.
The questions before the Court: Does EMTALA override a state law that limits abortions? Does EMTALA require emergency room doctors to perform abortions in hospitals covered by the Medicare program? Did Congress in 1986 give the federal government clear authority to expand EMTALA to require abortion as an emergency treatment?
Significance: The outcome of this case is expected to have an immediate impact on what has become the most emotionally troubling development on abortion in America over the past two years: the quick and widespread rise of emergency situations for pregnant women in states where the procedure is now banned or tightly restricted.
Case after case has come to light following a wave of strong anti-abortion laws passed or put into effect since the Dobbs decision freed states to act.
Although this case focuses on emergencies, in the background is a broad question of how the Court would react if Congress were to pass a law creating a right to abortion applying to all states. In President Biden’s first reaction to the Dobbs ruling, he said: “The only way to secure a woman’s right to choice is for Congress to restore the protections of Roe as federal law.”
With the current Congress deeply divided in both houses of Congress, especially over abortion rights, it may not be possible for a new national law to pass. If that were to happen, though, it would be tested in the courts, and this case may well set a precedent by the Court on Congress’s authority to pass any expansive national legislation to regulate health care.
In this case, in fact, the state of Idaho is asking the Court to examine critically the breadth of EMTALA by using the Court’s newly developed mode of interpreting federal laws that have wide economic and political impact. That is the so-called “major questions doctrine,” which the Court’s conservative majority has recently applied to nullify several major federal programs after finding that Congress had not explicitly given government agencies such authority.
Recalling how narrowly the Court 12 years ago upheld the core of the Affordable Care Act (the “Obamacare” law that reformed much of the nation’s health care industry), and adding to that the limitations more recently applied through the “major questions doctrine,” it will be hard for the federal government to win this case.
Even though EMTALA was passed by Congress under its fundamental power to authorize federal spending, which is very broad, the power of states to regulate the health of their residents is also well-established in constitutional law.
The Court will broadcast “live” the audio (no video) of this hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
