For the second time in a month, the US supreme court on Wednesday will hear arguments in a major abortion-rights case, the second to reach the justices since a 6-3 conservative majority overturned Roe v Wade two years ago.
Wednesday’s case involves a 1986 federal law called the Emergency Medical Treatment and Active Labor Act, or Emtala, which requires hospitals that receive federal dollars to stabilize patients who show up at their emergency rooms with medical emergencies.
Originally devised to stop hospitals from turning away uninsured patients, the law has become a focal point in the national debate over emergency abortions in states that ban the procedure. Doctors and abortion rights advocates say the law is one of the few tools they have left that allow them to help patients whose pregnancies threaten their health.
“This lawsuit has the potential to send a really clear message to clinicians that, in these life- and health-threatening circumstances, you should feel safe to provide care,” said Payal Shah, director of Physicians for Human Rights’ Program on Sexual Violence in Conflict Zones.
“Conversely, if it is found that state laws can pre-empt Emtala and that Emtala’s protections do not apply … that has the real risk of sending the opposite message.”
The case is also a test of one of the Biden administration’s chief efforts to protect abortion rights. Shortly after the supreme court overturned Roe and allowed states to outlaw abortion, the administration issued guidance clarifying that Emtala requires hospitals everywhere to perform abortions if patients need them in emergencies.
The Biden administration then sued Idaho, arguing that its abortion ban was so stringent that it conflicted with Emtala. Idaho is one of seven states with laws on the books that only permit abortions in medical emergencies if a patient’s life is at risk. Other states with abortion bans allow for the procedure when a patient’s “health” is in jeopardy – a lower standard than Emtala.
While even the broader exceptions are generally so vague that doctors say they are unworkable, they are not legally as strict as bans that only allow for life-saving abortions. The result in states like Idaho, doctors say, is that they must wait and watch as sick women dangerously decline before they can intervene.
An amicus brief, filed in the case by Idaho Coalition for Safe Healthcare, detailed Idaho physicians’ struggle to help pregnant patients in crisis. One woman developed a medical condition that left her at high risk of infection and facing an inevitable miscarriage. Ultimately, after several harrowing days of waiting, the woman’s pregnancy ended on her own – but she developed a severe infection that left her hospitalized for several days.
Many doctors who belong to the coalition now advise their pregnant patients to obtain insurance to cover a flight out of the state.
Between 2022, when Roe was overturned, and 2023, about 50 OB-GYNs moved out of the state. “I just could not comply with a law that could easily leave a mother dead,” said Dr Lauren Miller, a metal fetal medicine specialist who left Idaho in 2023. “It was too counter to my own moral and professional codes. I refuse to be complicit in such reproductive injustices.” Doctors in Idaho face five years in prison for violating the state ban.
A federal judge initially sided with the Biden administration, stopping Idaho from enforcing the parts of the ban that conflicted with Emtala. But the supreme court in January issued an order allowing Idaho’s full abortion ban to take effect.
Idaho, which is being represented in the case by the powerful Christian law firm the Alliance Defending Freedom, has argued in court papers that its ban does not conflict with Emtala, in part because Emtala does not mention abortion and cannot compel doctors to offer care that is illegal under state law.
Idaho has also argued that Emtala does require providers to treat an “unborn child”. That argument evokes fetal personhood, a priority of the anti-abortion movement that aims to endow fetuses with full legal rights and protections – even if those rights conflict with that the woman carrying the fetus.
Wednesday’s hearing comes just weeks after the court heard arguments in another abortion rights case, which involved the availability of a common abortion pill and the Food and Drug Administration’s ability to regulate it. Lawyers for the Alliance Defending Freedom also argued that case on behalf of anti-abortion activists. Both arguments have significant implications for the federal government’s power to regulate health care.
If anti-abortion states prevail, “you’re basically deconstructing the entire way that we manage health nationally in this country,” said Gerson Smoger, chair of the Physicians for Human Rights board of directors and, with Shah, a co-author of an amicus brief in the Idaho case. “There has to be some baseline that we have, nationally.”
Rulings in both the Emtala and mifepristone cases are expected in June.
