The Biden administration on Wednesday will head to the Supreme Court to defend one of its primary efforts to protect abortion rights after the fall of Roe v. Wade.
At stake is whether a federal emergency care law passed 37 years ago trumps state laws that ban abortion in nearly all circumstances.
The Justice Department contends the law requires hospitals that receive Medicare funding to provide an abortion if necessary to stabilize the health of an emergency room patient, regardless of state abortion bans.
Conservatives say the administration is trying to use the law to create a national abortion mandate for hospitals. They argue federal law doesn’t dictate the kind of care people receive, only that they are stabilized.
This will be the second time in as many months the Supreme Court has heard an abortion argument after ostensibly returning the issue to the states, and the case represents the latest legal challenge that could reshape access to abortion across the country.
Unlike an earlier case involving the abortion drug mifepristone, this lawsuit has been progressing mostly under the radar. But it serves to further elevate abortion as an election year issue Democrats want to put front and center.
The case centers on a federal law known as EMTALA, or the Emergency Medical Treatment and Active Labor Act, which requires federally funded hospitals to provide stabilizing care to emergency room patients no matter their ability to pay.
The Biden administration invoked EMTALA in the wake of the Supreme Court decision that overturned Roe v. Wade. The administration said state laws or mandates that employ a more restrictive definition of an emergency medical condition are preempted by the federal statute.
“Many pregnancy complications do not pose a threat to the woman’s life when she arrives at the emergency room — but delaying care until necessary to prevent her death could allow her condition to deteriorate, placing her at risk of acute and long-term complications,” the Justice Department said in its brief.
Idaho’s abortion ban is one of the strictest in the country and provides a narrow exemption only to save the life of the pregnant patient. The Biden administration sued Idaho just weeks after the Dobbs ruling.
A lower court quickly ruled in favor of the administration and put Idaho’s abortion ban on hold, but the White House has since lost multiple appeals.
In the most recent setback for the administration, the Supreme Court in an unsigned order paused lower court rulings that partially blocked Idaho’s abortion ban and agreed to take up the case before the lower courts had fully considered it on the merits. Until the court rules on the case later this summer, Idaho can continue prosecuting physicians who perform abortions in violation of the state law.
Abortion rights advocates warn that if the court rules for Idaho, physicians won’t be allowed to follow their best medical judgment.
“They want to provide the best care for their patients and help them out of medical crises. But they’re caught in this web of cruel and incredibly unclear laws that make it impossible to act. So doctors are suffering along with their patients in these situations,” said Amy Myrick, a senior staff attorney at the Center for Reproductive Rights.
Health providers say state abortion laws contain too much uncertainty and don’t protect them if they need to perform an abortion. As a result, stories about pregnant patients in medical distress being turned away from hospitals or being told to wait in a parking lot until their life is in danger are becoming common.
Caitlin Gustafson, an OB-GYN in Idaho, said the state’s abortion ban is driving doctors from the state and creating a maternal care desert, because many don’t want to be second-guessed on their medical decisionmaking. That’s why EMTALA protection is critical, she said.
“It is untenable to force physicians to divert from the standard of care, to ignore their medical training and judgment, only to answer to a political agenda that has nothing to do with the actual practice of medicine and the lives in front of us that are at risk,” Gustafson told reporters during a recent briefing.
“If you make standard medical care a crime when folks in all kinds of difficult medical situations present, especially in emergency situations, we are always going to see some type of delay,” she added. “Because it’s criminalized care, physicians are going to naturally hesitate.”
But conservatives say doctors are being too cautious, and argue abortion bans don’t prevent physicians from treating women with pregnancy complications.
“The Biden administration keeps saying that women need to be at death’s door to receive care, and that’s simply not true. Idaho’s law empowers doctors to make good-faith judgments in order to protect the life of the mother,” said John Bursch, vice president of appellate advocacy for the conservative legal group Alliance Defending Freedom (ADF), which is Idaho’s co-counsel in the case.
In a brief, Idaho argued that the text of EMTALA doesn’t address abortion.
“EMTALA says nothing about abortion. Congress has not silently mandated abortions that it won’t pay for, especially not in a statute amended to protect a pregnant mother’s unborn child,” attorneys for Mike Moyle (R), Speaker of the Idaho House of Representatives, wrote.
ADF attorneys representing Idaho Attorney General Raúl R. Labrador (R) in a separate brief similarly argued that EMTALA “does not require hospital emergency rooms to become abortion enclaves in violation of state law.”