SCOTUS shocked by Biden administration's view of federal power over states in ER abortion challenge

Justice Gorsuch asks solicitor general if she "really want[s] to rely" on decision that "wasn't exactly our brightest moment" on Supreme Court. Protection for "unborn child" is "odd phrase" to put in putative abortion mandate, Justice Alito says.

Published: April 24, 2024 11:06pm

To convince the Supreme Court that the Biden administration could use federal Medicare funding to force hospitals to perform abortions in violation of Idaho law, Solicitor General Elizabeth Prelogar conceived and gave birth to some unusual arguments Wednesday.

She reached for a 129-year-old precedent that crippled the labor movement for decades, neutered legal obligations to the "unborn child" in the federal law that allegedly requires abortions in certain situations, and didn't deny a Republican administration could use her rationale to functionally ban abortion and even transgender care nationwide.

Such is the federal government's interest in ensuring that abortion-minded women can use emergency rooms to terminate pregnancies as conservative states approve new abortion restrictions, or reinstate old ones, under the high court's reversal of Roe v. Wade in 2022.

Backed by 22 conservative states and sued by the feds, Idaho challenged the Biden administration's use of the Emergency Medical Treatment and Labor Act as a "super-statute" that overrides its Defense of Life Act, which includes criminal penalties and loss of license, and "turns emergency rooms into a federal enclave where state standards of care do not apply."

While Prelogar faced skepticism from GOP-appointed justices about the massive expansion of federal power her argument implied, a recurring point of confusion for the whole bench was how much "daylight" stood between EMTALA, designed to stop "patient-dumping," and Idaho's law.

The former requires "immediate medical attention" when the health of the individual or "unborn child" would otherwise face "serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs." The latter has one health-related abortion exception: "necessary to prevent the death of the pregnant woman."

Idaho Chief of Constitutional Litigation Joshua Turner struggled to convince both parties' appointees at oral argument Wednesday that Idaho doctors need not fear prosecution for performing abortions that would save a woman's life in their "good-faith medical judgment."

Gem State hospitals aren't taking any chances, Prelogar told the court, citing one system that says it has transferred a pregnant woman who needs an emergency abortion out of state every other week. Justice Elena Kagan said Idaho's busiest emergency department airlifted six women to less draconian pro-life states in "the few months" before the law was blocked.

This case is limited to "grave medical emergencies" that EMTALA requires hospitals to treat to "stabilize" women who, "within reasonable medical probability," would suffer "material deterioration" of their emergency conditions if transferred, Prelogar said. 

That may require performing abortions, and it's how the law has been "understood and applied for decades," even by pro-life states that further restricted abortion following the high court's 2022 Dobbs ruling, she said. 

"This is not a post-Dobbs unprecedented position by the government," Justice Sonia Sotomayor told Idaho's Turner, who insisted it was in both his main argument and rebuttal.

Turner emphasized that the government's spreadsheet of "115,000 enforcement instances" did not show "a single example where state law was overridden by EMTALA."

The administration's reading would mean each state's standard of care on opioids, which varies from a five-day supply to "no limit," could be "wiped out" by the feds, he said.

Justices Clarence Thomas and Samuel Alito suggested the administration took an unprecedented step by using its constitutional spending clause authority to not only override a state's criminal law but regulate a party – Idaho – not subject to the Medicare conditions.

Idaho wants to have it both ways, Prelogar responded: It wants its hospitals to get federal money without federal strings. 

"It does seem odd that through a side agreement" between the feds and a private party, the latter "can get out of state law, right?" Justice Amy Coney Barrett asked Prelogar. That reasoning would allow "another administration" to ban abortions or "gender reassignment surgery" – removal of healthy breasts and genitals to treat gender dysphoria.

Prelogar walked a tightrope, saying the spending clause grants Congress "broad" but not "wholly unlimited" power to attach conditions. Asked if she meant Congress would have to act "pursuant to an enumerated power" to ban abortion and transgender surgery, Prelogar clarified "it would have to be valid spending."

The solicitor general amazed Justice Neil Gorsuch by arguing Congress "very likely" had the authority to preempt all state medical licensing laws through a medical ethics rule. The yanking of Medicare funds is an "extreme sanction" that would only follow a hospital's repeated refusal to comply with the government's view of EMTALA, she emphasized

When the court's most libertarian justice questioned Prelogar's case law that supposedly justified the government's "inherent action in equity" to protect its sovereign interests, she invoked the 1895 ruling known as In Re Debs, which approved an injunction against a nationwide railroad strike. 

It involved labor leader Eugene Debs, who later ran for president as a socialist while imprisoned for opposing the draft.

"Oh, Debs," Gorsuch interjected, asking Prelogar if she "really want[s] to rely" on a decision that "wasn't exactly our brightest moment" as a court. The ruling – later superseded by Congress – "reflects the history and tradition of this nation in recognizing that it's entirely appropriate for the United States to seek to protect its interests in this manner," she responded.

Alito peppered Prelogar with questions about how the government understands undefined terms in EMTALA – say, if it could require abortions to stabilize women with "mental health" problems. That would be "incredibly unethical" as a violation of informed consent and isn't the standard of care, she said.

Prelogar did admit the government might require abortion to prevent "temporary" impairment, because "I'm not sure that it's easy to parse" the difference between temporary and potentially permanent impairment in the moment a doctor evaluates a woman.

Chief Justice John Roberts and Gorsuch caught the solicitor general in an apparent walkback on conscience rights. 

Prelogar first told Roberts that both religious hospitals and physicians can opt out of abortions without violating EMTALA, then implied the former "as a matter of best practice" should ask physicians to articulate their conscience objections in advance so they are "appropriately staffed" to provide any medically necessary abortions under Medicare. 

"I imagine" the Department of Health and Human Services would "work with" a religious hospital that was "continually disobeying" the abortion-staffing requirement to bring it into compliance, Prelogar said. 

That's the opposite of what Prelogar said "a minute ago," that hospitals with conscience objections can refuse abortions without violating EMTALA, Gorsuch interrupted. "Which is it?" She responded, without elaborating: "That's correct."

Gorsuch asked Idaho's Turner how the court should think about the "unborn child" part of EMTALA. That doesn't mean the federal law "prohibits abortions," just that "stabilizing treatment may involve abortions consistent with" state law, like in liberal California, Turner said.

"It would be a very strange thing for Congress to expressly amend EMTALA to require care for unborn children" in 1989 "when the child itself has an emergency medical condition," even if the mother is not in labor, and yet intend EMTALA to mandate abortion, Turner said.

Justice Alito returned to the "unborn child" question 90 minutes into oral argument, by his time count, saying he was surprised no one further examined the "odd phrase" in a putative abortion mandate.  

Prelogar said the 1989 amendment was intended to protect pregnant women whose condition threatens their fetuses without inhibiting their individual rights. But the "plain meaning" of the statute obligates the hospital to protect the fetus, making abortion "antithetical," Alito said.

EMTALA does not say how to "adjudicate conflicts" between mother and unborn child, and Prelogar's argument boils down to "the Idaho law is a bad law" rather than explaining how a federal law signed by pro-life President Reagan mandates abortion, Alito said.

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