Background

EMTALA was passed in 1986 to prevent hospitals from refusing emergency care to patients who couldn't pay.

Following the overturning of Roe v. Wade in Dobbs v. Jackson, the federal government issued guidance saying EMTALA provided federal protections to providers performing abortions in emergency situations, even in states with abortion restrictions.

Soon after, the Department of Justice filed a lawsuit challenging an Idaho law that only allows for abortions to save the life of a pregnant person, arguing the exception was "extremely narrow" and violated EMTALA.

"For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy. In those circumstances, EMTALA requires participating hospitals to offer such care — yet Idaho law forbids it," the Justice Department argued in a brief to the Supreme Court.

Idaho and anti-abortion activists argued the Biden administration is attempting to subvert the Supreme Court's decision in Dobbs, which left abortion regulations up to the states.

"In nearly four decades since EMTALA was enacted, neither the statute nor previous federal guidance ever stated 'obligations' requiring hospitals and physicians to provide any particular procedure, much less an abortion," Idaho's brief said.

Idaho also noted that EMTALA provides protections for a mother and an "unborn child" equally, and the law does not mention abortion.

The Justice Department argued those provisions were added to the law to clarify that hospitals needed to provide emergency care for an unborn child even if the mother's health wasn't at risk.

SCOTUS hears arguments in case

On Wednesday, the Supreme Court heard oral arguments in the Moyle v. United States case. Some of the conservative justices, who have a 6-3 majority on the court, appeared skeptical of the Justice Department's lawsuit, while the liberal members of the court appeared to approve of the Biden administration's position.

The lawyer representing Idaho, Joshua Turner, faced questions regarding whether the state's exception can also apply to situations where a pregnant person has complications that pose a substantial health risk, but not imminent death.

Justice Elena Kagan argued that EMTALA says "you don't have to wait until the person is on the verge of death."

"If the woman is going to lose her reproductive organs, that's enough to trigger this duty on the part of the hospital to stabilize the patient," Kagan said.

Justice Sonia Sotomayor provided examples of real-life situations in which women faced emergency situations where doctors had to decide whether to provide an abortion, including one situation in which a patient who was 16 weeks pregnant, had her water break, and was at risk of sepsis or a hemorrhage after being refused an abortion in Florida.

"Is that a case in which Idaho the day before would have said it's okay to have an abortion?" Sotomayor asked.

Turner said that such medical decisions are "subjective" and that the judgment of a doctor in those situations would be based on good faith rather than an objective standard. Turner also said he believes that Idaho's law doesn't conflict with EMTALA, as it allows EDs to provide abortions if a pregnant person has a medical complication that is likely to lead to death, not only if the person is facing imminent death.

However, Justice Sotomayor asked Turner if the ban would prevent an abortion in a situation where a pregnant person would otherwise lose an organ or suffer serious medical complications. "Yes, Idaho law does say that abortions in that case aren't allowed," Turner said.

Meanwhile, Justices Amy Coney Barrett and Brett Kavanaugh suggested they believed Idaho's law allowed for treatment similar to what the Biden administration is arguing EMTALA requires, suggesting there might not be a conflict.

Kavanaugh wondered what the implications would be if "Idaho law allows an abortion in each of the emergency circumstances that is identified by the government."

"What does that mean for what we're deciding here?" Kavanaugh asked Turner.

However, Justice Kagan noted that many hospitals in Idaho are still uncertain about when they can perform an abortion, so much so that many of them are flying patients to other states. She added that one Idaho hospital had to fly patients to another state six times so those patients could receive an emergency abortion in a location where everyone was certain it was legal.

"It's become [that] 'transfer' is the appropriate standard of care in Idaho, but it can't be the right standard of care to force somebody onto a helicopter," Kagan said.

Justice Samuel Alito appeared skeptical of the Biden administration's argument, noting that EMTALA refers to treatment for an "unborn child."

"Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions?" Alito asked Solicitor General Elizabeth Prelogar. "Have you seen abortion statutes that use the phrase 'unborn child?' Doesn't that tell us something?"

Prelogar said the phrase didn't displace the requirement that patients receive the treatment they need in an emergency situation. She added that EMTALA requires the hospital to "offer" stabilizing care for both treatments, meaning that in a case where only the pregnant person or fetus's life could be saved, the hospital is required to offer both treatments and honor the pregnant patient's choice.

Prelogar added that in most pregnancy emergencies where an abortion is required, a live birth isn't possible. "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 those cases, Prelogar 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."

Alito also questioned whether the federal government can force private hospitals that receive federal funding to violate a state's law.

"How can you impose restrictions on what Idaho can criminalize?" Alito asked.

A decision on the case is expected in June.

Reaction

Anti-abortion activists argue that EMTALA specifically protects the life of "the unborn child."

"To say that a statute that requires the protection of the unborn somehow requires doctors to take their lives in emergency rooms, it's just nonsensical," said John Bursch, VP of appellate advocacy for the conservative legal group Alliance Defending Freedom, which is acting as Idaho's co-counsel in the case.

The Charlotte Lozier Institute, an anti-abortion think tank, said in a friend-of-the-court brief that EMTALA "expressly protects the lives of unborn children" and that it requires hospitals "to follow the two-patient paradigm to protect both the mother and her unborn child."

"The United States' attempt to diminish the 'unborn child's' life as secondary—one that must be protected only if her mother’s health is not threatened but loses all value if her mother's health is in jeopardy—is atextual," the brief said. "Congress expected hospitals and physicians to preserve both lives wherever possible."

However, Alexa Kolbi-Molinas, deputy director of the Reproductive Freedom Project at the ACLU, said she believes the case is "incredibly dangerous, the implications of what the argument Idaho is trying to push, with respect to the term and the use of the unborn child in the statute."

Specifically, abortion rights activists worry that the Supreme Court will issue a ruling ultimately encouraging the anti-abortion movement to take more aggressive steps toward the push to fetal personhood.

"We have this case for the court where they are going to be talking about what the term 'unborn child' means. And so even though it's going to be specific to EMTALA, and its definition there, what we're going to see is anti-abortion folks seize on that, policymakers seize on what the court says," said Gretchen Borchelt, VP for reproductive rights and health at the National Women's Law Center.

Advisory Board's Ellie Wiles noted that if the Supreme Court determines hospitals aren't "required to offer life-saving abortion care in the case of medical emergencies under EMTALA … it would set a dangerous precedent for patients across the country."

Advisory Board's Madeline Vogel noted that, if the Supreme Court sides with Idaho, the ruling would likely "limit access to care for pregnant patients and restrict the medical judgment of providers who fear prosecution or losing their license for offering emergency care to these patients in states with strict bans. This could discourage future providers from practicing in states with strict bans, putting further strain on nationwide ob/gyn shortages."

Vogel added that states neighboring those with strict abortion bans "will likely see an increase in out-of-state abortion as patients are either sent there or elect to travel for care."

Advisory Board resources on women's health

• Expert Insight: Abortion laws are continuing to change. Here's how to help your clinical workforce right now
• Our take: 5 steps to improve women's health and well-being
• Market insights: Health plans' top 3 maternal care priorities
• Research: Top drivers of change in the maternal and reproductive health market
• Maternal & reproductive health market trends

(Millman, Axios, 4/24; Sneed, CNN, 4/24; Hurley, NBC News, 4/24; Millhiser, Vox, 4/24; Marimow, Washington Post, 4/24; Owermohle, STAT, 4/24; Belluck, New York Times, 4/24)