The Supreme Court considers if there’s a right to medically necessary abortion

A federal law requires most hospitals to perform emergency abortions. The question is whether a Republican Supreme Court will enforce it.

A protester in front on the Supreme Court building holds a sign over their head that reads, “my body my choice.”

Abortion rights activists march to the US Supreme Court on June 24, 2023, in Washington, DC. The rally was held to mark the first anniversary of the U.S. Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization. Sha Hanting/China News Service/VCG via Getty Images Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

A federal law, known as the Emergency Medical Treatment and Labor Act (EMTALA), requires hospitals that accept Medicare funds to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.”

The language unambiguously requires these hospitals to provide an abortion to such patients when an abortion is the appropriate medical treatment to stabilize their emergency medical condition. And a federal court in Idaho held more than a year ago that this statute requires hospitals to provide medically necessary abortions even if the procedure would ordinarily be banned under state law.

Now we’re about to find out whether the Supreme Court will follow the text of EMTALA, in a pair of cases known as Idaho v. United States and Moyle v. United States. (Both cases present similar issues, but the Idaho case was brought to the Supreme Court by Idaho Attorney General Raúl Labrador, a Republican, while the Moyle case was brought by the state’s GOP-controlled legislature.)

The trial court that heard these cases held that EMTALA trumps (or “preempts,” to use the appropriate legal term) Idaho’s sweeping abortion ban, which generally allows doctors to perform abortions only when “necessary to prevent the death of the pregnant woman.”

This trial court decision did not fully legalize abortion in Idaho, nor did it come close to doing so. But it did hold that federal law requires Idaho hospitals to provide abortion care to patients who are at risk of “serious impairment to bodily functions,” “serious dysfunction of any bodily organ or part,” or other nonfatal consequences that are defined as medical emergencies by EMTALA.

In both the Idaho and the Moyle cases, Idaho officials ask the Supreme Court to block this lower court’s decision, despite EMTALA’s unambiguous language, and there’s at least some risk that the Court’s GOP-appointed majority will do so. This is, after all, the same majority that recently overruled Roe v. Wade and abolished the constitutional right to an abortion.

In September 2023, a panel of three Trump-appointed judges on the United States Court of Appeals for the Ninth Circuit briefly stayed the lower court’s decision enforcing EMTALA. That order was swiftly withdrawn by the full Ninth Circuit. But the willingness of those three Trump judges to reinstate Idaho’s ban on providing medically necessary abortions to many patients suggests that at least some members of the Supreme Court may also be willing to do so.

What’s the specific legal issue in these cases?

EMTALA is a fairly straightforward statute. It only applies to hospitals with emergency rooms, and it only applies to hospitals that take Medicare funds (which is most hospitals because Medicare provides health coverage to Americans over the age of 65). Under EMTALA, those hospitals generally must provide emergency care to any patient who requires it.

The primary purpose of EMTALA is to prevent hospitals from refusing to treat patients with medical emergencies who are unable to pay for their care, but the law is written in expansive terms. It provides that “if any individual … comes to a hospital and the hospital determines that the individual has an emergency medical condition,” the hospital typically must “stabilize the medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.)

EMTALA, moreover, defines the term “emergency medical condition” to include not just life-threatening illnesses or injuries, but also conditions that place someone’s health “in serious jeopardy” or that threaten “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.”

So, for example, if a pregnant patient arrives at a hospital emergency room with a medical condition that could destroy her uterus but that does not threaten her life, EMTALA generally requires that hospital to perform an abortion if the patient’s doctors determine that an abortion is the appropriate treatment to prevent this outcome and if the patient consents to this medical procedure.

The Constitution, moreover, provides that federal law “shall be the supreme Law of the Land,” meaning that it preempts any state law that conflicts with it. EMTALA also contains a provision stating that state and local laws must give way “to the extent that the [state law] directly conflicts with a requirement of this section.”

So Idaho and Moyle are easy cases. There is a federal statute that explicitly requires most Idaho hospitals to stabilize “any individual” who presents with an emergency medical condition. The law contains no exception for patients who require an abortion to stabilize their condition. And the law explicitly states that Idaho’s laws must give way, to the extent that they conflict with EMTALA.

So what are Idaho’s arguments against following EMTALA?

The Idaho officials seeking to reinstate the state’s strict abortion ban make two arguments in favor of allowing their state to continue to ban abortions that are protected by federal law. First, the state’s lawyers point to a provision of federal Medicare law that says EMTALA should not be read “to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.”

They claim that this provision prevents EMTALA from being read to require hospitals to provide care that is not permitted under state law. But, as the DOJ explains in its brief to the justices, this provision has nothing at all to say about whether EMTALA limits Idaho’s abortion ban.

For one thing, this provision only applies to “any Federal officer or employee.” As the DOJ explains, “EMTALA’s stabilization obligation was enacted by Congress, not imposed by a ‘Federal officer or employee.’”

Additionally, the purpose of this provision is not to safeguard state bans on certain medical procedures. It is to prevent federal officials from second-guessing medical decisions made by doctors and their patients. But the DOJ does not argue that EMTALA requires doctors to perform abortions when they deem those abortions unnecessary. It merely provides that, when a doctor does determine that an abortion is medically necessary and the patient consents to that treatment, then the hospital must provide it.

Idaho’s lawyers also point to provisions of EMTALA that often require a hospital to stabilize a pregnant patient’s “unborn child,” if the fetus is also experiencing a medical emergency. Idaho’s interpretation of these provisions is stark: “EMTALA’s regard for the unborn child’s life and health precludes interpreting it as a mandate to kill that child.”

This apparent tension in the EMTALA statute is resolved by a provision that lays out each hospital’s precise obligations under the law. A hospital is not required to perform an abortion against a patient’s wishes. Nor does it require the hospital to choose who lives and who dies in a tragic case where either the mother or the fetus will die no matter what treatment is provided.

Rather, EMTALA states that a hospital meets its obligations if it “offers” the patient stabilizing treatment and informs that patient “of the risks and benefits to the individual of such examination and treatment.”

So, in the sad case where a patient is forced to choose between an abortion, which would stabilize their own medical condition, or a treatment that would save their fetus but leave them at risk, EMTALA requires a hospital to offer the patient either treatment and to explain the terrible choice the patient must make. And then it requires the hospital to honor the patient’s choice.

What EMTALA does not do is express a preference between treating a pregnant patient or treating that patient’s “unborn child.” That choice rests with the patient and the patient alone (or, if the patient is unable to make this decision, with “a person acting on the [patient’s] behalf,” such as their next of kin).

All of which is a long way of saying that Idaho and Moyle should be very easy cases. The statute is quite clear that most Idaho hospitals must provide medically necessary abortions.

The only question is whether this Supreme Court will follow the text of the law.


No votes yet.
Please wait...

Leave a Reply

Your email address will not be published. Required fields are marked *