Supreme Court hears case about emergency abortion care

The Supreme Court heard oral arguments Wednesday on whether Idaho’s abortion ban can be enforced in medical emergencies, putting a spotlight on what has been one of the most politically explosive flashpoints in the aftermath of Roe v. Wade’s demise. 

Here are key takeaways from today's high-stakes hearing:

US solicitor general tailors her appeal to an abortion-hostile court as "narrow" circumstances of medical emergencies: US Solicitor General Elizabeth Prelogar said that there was a real conflict between Idaho’s law and the federal law, known as the Emergency Medical Treatment and Labor Act (EMTALA), but she painted it as a narrow one. She stressed that, in this case, the administration is not trying to interfere with Idaho’s overall ability to criminalize abortions outside of certain medical emergencies.

Idaho and its defenders argue that the Biden administration is trying to circumvent the Supreme Court’s 2022 ruling that let states prohibit abortion, and to rebut that argument, Prelogar described Idaho has an outlier among states that have banned the procedure.

Prelogar’s argument was met with deep skepticism from several of the court’s conservative justices, but others – including Chief Justice John Roberts and Amy Coney Barrett– asked probing questions of both sides. The court’s liberal wing, meanwhile, all signaled they would coalesce around the Biden administration.

Idaho attorney struggles with questions from female justices about serious pregnancy complications: Idaho’s attorney Joshua Turner was subjected to a brutal and extended line of questioning from the female justices of the court exploring how the state’s abortion ban plays out in medical emergencies – particularly in dire situations where a woman’s health is at risk but her life is not yet in danger.

Justice Sonia Sotomayor asked Turner point blank: “What you are saying is that there is no federal law on the book that prohibits any state from saying, even if a woman will die, you can’t perform an abortion?”

Justice Elena Kagan offered a hypothetical in which a woman was about to lose her reproductive organs due to a pregnancy complication. As Turner danced around the “difficult” and “tough” situation her question as posing, she pushed harder: “That would be a good response if federal law did not take a position on what you characterize as a ‘tough question.’”

Keep reading takeaways from the arguments.

In a Supreme Court hearing on the Biden administration’s challenge to aspects of Idaho’s strict abortion ban, US Solicitor General Elizabeth Prelogar sought to appeal to conservative justices who just two years ago ruled that states should have the ability to prohibit the procedure.

The dispute, stemming from the Justice Department’s marquee response to the high court’s reversal of Roe v. Wade in 2022, turns on whether federal mandates for hospital emergency room care override abortion bans that do not exempt situations where a woman’s health is in danger but her life is not yet threatened.

To prevail, the Biden administration will need the votes of two members of the court’s conservative bloc, and with Justice Brett Kavanaugh signaling sympathies toward Idaho, the case will likely come down to the votes of Chief Justice John Roberts and Amy Coney Barrett. The two justices had tough questions for both sides of the case.

The court’s far-right wing, perhaps in an attempt to keep those two justices on their side, framed the case as a federal overreach into state power. The court’s liberals, meanwhile, focused on the grisly details of medical emergencies faced by pregnant woman that were not covered by the limited life-of-the-woman exemption in Idaho’s ban.

Dr. Caitlin Gustafson, a family medicine physician from rural Idaho, said having access to safe abortions should be a standard of care in order to have a safe health care system.

Speaking to CNN right outside of the Supreme Court, Gustafson said that she has seen Idaho's health care system "fall apart" since the abortion ban went into effect.

"We have lost a multitude of providers, particularly my OB-GYN colleagues who cannot continue to have themselves in the position of trying to make these decisions in emergencies, where a patient's heath and life threatened," she said, noting that if they make the wrong decision at the wrong moment, they may go to jail or lose their license.

Gustafson said that believes the Supreme Court's decision, based on today's arguments regarding whether Idaho's abortion ban can be enforced in medical emergencies, puts safe emergency health care across the board is at risk.

"This isn't just about abortion, this is about a protection of — a life saving protection we've had in place that keeps any person, including our pregnant patients who come to the emergency room safe," she said.

The federal law is what doctors across the country has "grown up under and it's what keeps everyone safe" she said. Gustafson also noted that she's seen a distinct change in the health care system in Idaho since doctors in the state lost this protection and says it is "untenable."

US Solicitor General Elizabeth Prelogar argued today that Idaho’s abortion law is akin to a ban on epinephrine, which treats severe allergic reactions.

Prelogar noted federal law mandates that if a person has an emergency medical condition and goes to an emergency room, “they have to stabilize you."

“Congress did not provide a reticulated list of all possible emergency medical conditions and all possible treatments,” she said. “But it was very clear that Congress set a baseline national standard of care to ensure that no matter where you live in this country you can’t be declined service.”

Of Idaho’s abortion law, Prelogar said: “It would be no different if the state had come out and decided to ban epinephrine."

“I don’t see any way to try to draw lines around to exclude pregnancy complications,” she added.

Supreme Court arguments in the historic abortion case have concluded. 

Now the justices will begin drafting an opinion – or several. That process usually takes a few months. In this case, the court is expected to hand down its ruling by the end of June.

In a tense exchange over how federal protections extend to a fetus, US Solicitor General Elizabeth Prelogar argued that women “deserve” medical treatment whenever it is needed.

Prelogar and Conservative Justice Samuel Alito went head-to-head as part of a line of questioning from the justice over whether, in enacting the federal law EMTALA, lawmakers were aiming to give protections to an “unborn child" — a term that is included in multiple provisions of the law.

Prelogar said the law states there is a duty for doctors to act when a pregnant person is “suffering some kind of emergency and her own health isn’t at risk, but the fetus might die,” like in the case of a prolapse of the umbilical cord into the cervix.

“But to suggest that in doing so," Prelogar said, "Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization — I think that that is an erroneous reading of this."

Alito snapped back: “Nobody’s suggesting that a woman is not an individual and she doesn’t deserve stabilization.”

US Solicitor General Elizabeth Prelogar argued that the federal government has an interest to “protect its sovereign interest,” noting that “Idaho has directly interfered with the ability of hospitals to accept” federal funds through its abortion law.

Prelogar said several cases address the issue of proprietary interest, citing a case from the late 1800s in which the US Supreme Court unanimously upheld the federal government’s injunction to stop a labor strike related to US railroads.

Prelogar cited the Supreme Court’s ruling in the case, known as In re Debs, during arguments against Idaho’s abortion law.

Justice Neil Gorsuch reacted: “Debs? You really want to rely on Debs, general? I mean that wasn’t exactly our brightest moment."

“I do think though that it 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,” Prelogar said.

Conservative Justice Samuel Alito asked US Solicitor General Elizabeth Prelogar to explain why the federal law in question, the Emergency Medical Treatment and Labor Act (EMTALA), uses the term “unborn child.”

“It’s not an odd phrase when you look at what Congress was doing,” at the time Prelogar said. The law was amended to add the term in 1989.

“There were well publicized cases where women were experiencing conditions their own health and life were not in danger, but the fetus was engraved distress and hospitals weren’t treating them," Prelogar said.

The term is referenced multiple times in law, including in the definition of a medical emergency scenario where the health of an unborn child is in serious jeopardy, where restricting the transfer of a patient in labor would put the safety of the unborn child at risk. 

The Charlotte Lozier Institute, an anti-abortion think tank, said in a friend-of-the-court brief that that EMTALA “expressly protects the lives of unborn children” and that it requires hospitals to “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.”  

If a pregnant woman in Idaho comes to an emergency room facing a grave threat to health but isn’t facing death, doctors have to delay her care until she deteriorates “or they’re airlifting her out of the state so she can get the emergency care that she needs,” US Solicitor General Elizabeth Prelogar said in her argument.

“One hospital system in Idaho says that right now, it's having to transfer pregnant women in medical crisis out of the state about once every other week,” she said.

There has been an uptick in the number of patients transferred for life-saving abortions after Idaho banned the procedure, according to Dr. Jim Souza, the chief physician executive for Boise-based St. Luke’s Health System.

St. Luke's, Idaho's largest hospital system, wrote in a friend-of-the-court brief that the legal uncertainty created by the state's abortion ban means patients with emergency pregnancy complications are more likely to be transferred out of state for care unless they're at "imminent risk of death."

Souza said that in 2023, during an injunction on enforcement of the law as it pertained to the Emergency Medical Treatment and Labor Act (EMTALA), only one patient in the emergency department was recommended to be transferred out of the state.

“In the short period of time, it’s been just a few months now that Idaho’s law has been in effect, six patients with medical emergencies have already been transferred out of state for termination,” Souza said in a call with reporters last week. “If we annualize that, we can anticipate up to 20 patients needing out-of-state care this year alone.”

Dr. Julie Lyons, a family medicine physician with St. Luke’s Health System, told CNN in February that she counsels patients on their first prenatal visit to "buy life-flight insurance," in case they face a "rare situation that a complication does happen."

Some doctors have also left Idaho as a result of the law, Souza said, creating a “destabilizing effect” on the hospital system.