Highlights from Supreme Court oral arguments on Idaho abortion case

In closing, Turner warned the justices: The federal government could seek to challenge broader abortion bans in other states, pointing other abortion laws do not meet the federal law’s requirements.

Other state abortion laws, he essentially argued, could be weakened if the Supreme Court sides with the Biden administration.

“There are 22 states with abortion laws on the books,” Turner said. “This isn’t going to end with Idaho. This question is going to come up in state after state.”

The conservative justices seem skeptical that federal law can override strict state abortion bans, even during some medical emergencies.

“Have you ever seen an abortion statute that uses the phrase unborn child?” Alito asked, saying performing an abortion would be antithetical to the duty to provide a fetus with stabilizing treatment. He suggested that the balance between a hospital’s duty to a woman and its duty to her unborn child is left to state law.

Prelogar said pregnant patients are also protected, and said hospitals can’t make that choice on behalf of the pregnant patient. She noted that in some cases, women facing dangerous emergency conditions choose to continue the pregnancy despite the extreme risk.

“Tragically in many of these cases, the pregnancy is lost. There is no treatment,” Prelogar said. Now that Idaho is waiting for women to deteriorate before providing treatment, it is stacking “tragedy on tragedy,” she said.

“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform an abortion?” Alito asks, regarding language in federal law.

He is a likely vote for Idaho.

Prelogar pushed back on Idaho’s argument that its state law allows doctors to perform abortions in almost every case where her health would be at risk.

Prelogar said she’s specifically worried about women who, early on in pregnancy, present at emergency rooms after their water has broken. In that case, she said, a woman wouldn’t be at risk for death at the time, but she could be at risk for sepsis or organ failure.

“She might have these dramatic consequences for her future, but it’s not about death,” Prelogar argued.

The questions over “conscience objections” mirrored questions posed last month when the U.S. Supreme Court heard arguments over whether to limit access to mifepristone, a pill used in the most common way to end a pregnancy.

The Supreme Court has yet to rule on the mifepristone case.

Under federal law, can doctors object to providing emergency abortions if it violates their conscience?

Prelogar said yes, the conscience objections are allowed under federal law. But she notes that hospitals take conscience objections into account when they set staffing schedules. She said they generally ask doctors about any objections in advance and then work to make sure a doctor without an objection is available in case an emergency arises.

Idaho has repeatedly said the federal government may force emergency rooms to provide abortions if a pregnant patient is in mental distress and demands an abortion. The state has only raised this as a hypothetical and not provided an actual example of a doctor being in this position.

Alito questioned Prelogar on whether emergency room doctors would need to provide an abortion to a woman who was suicidal, stating he wanted to get her on the record, asking her, “Does health mean only physical health or does it also mean mental health?”

Prelogar said it’s not the administration’s view that an abortion would be provided as emergency medical care if a woman was suicidal or depressed. She said that the hospital would be required to treat the patient in other ways.

“That could never lead to pregnancy termination because that is not the accepted standard of practice to treat any mental health emergency,” Prelogar said.

Justice Samuel Alito asked if EMTALA applies just to situations where someone’s health could be permanently impaired, or if it also applies when a patient’s health might be temporarily impaired.

Prelogar says it’s both: A pregnant woman in distress might start experiencing liver failure or other organ problems, and there’s no way to tell in the moment if those conditions will be permanent or resolve down the road. The federal law is designed to prevent situations where those conditions might worsen, she says.

Justices Samuel Alito and Clarence Thomas raised questions about whether federal law that threatens loss of funds, as EMTALA does, can be used to override a state’s criminal law. Idaho’s ban threatens prosecution of doctors who perform illegal abortions.

Samuel Alito and Clarence Thomas then took their turn at questioning Prelogar. Alito, who wrote the opinion that overturned American women’s constitutional right to an abortion, was blunt with the solicitor general at one point, telling her: “I don’t know how the theory works” in response to her argument.

Prelogar makes the early point that the situation on the ground in Idaho shows that state law is too restrictive, saying hospitals are delaying treatment until a woman’s condition deteriorates or airlifting patients out of state to get treatment.

Even pregnant patients who aren’t in emergencies have sometimes had to leave the state or travel long distances for prenatal care. Three hospitals have closed their labor and delivery units and dozens of obstetricians have stopped practicing in Idaho since the state’s strict abortion bans took effect.

After nearly an hour of questioning, the justices have stopped questioning Turner, turning to arguments from Solicitor General Elizabeth Prelogar.

She is arguing her fourth abortion case in her 2 ½ years on the job. The others include the case in which a conservative majority overturned Roe v. Wade, a dispute over a Texas law that severely restricted abortion even before Roe fell and last month’s arguments over access to mifepristone, a medication used in the most common form of abortion in the U.S.

The term, “medical standard of care” refers to the treatment that is widely used by health care professionals and accepted by medical experts as the best practice for any specific health condition. Medical standards of care evolve over time as medical therapies improve. They also serve as a legal measurement of whether a doctor might be liable for medical malpractice.

Turner suggests that EMTALA’s definition of “stabilizing care” could mean that a woman who is severely depressed about her pregnancy might be able to get an emergency room abortion at seven months’ gestation. That’s a hypothetical — he hasn’t suggested that such an instance has actually occurred in Idaho.

But Justice Amy Coney Barrett notes that the federal government has said the federal law doesn’t require abortions for mental health conditions.

“It’s hard for me to see with a mental health condition that couldn’t be stabilized” until a person is transferred somewhere else for additional care, she said.

Turner made only passing reference to another argument Idaho makes, that EMTALA by its very words also protects an “unborn child,” meaning that abortion cannot be required unless the life of the mother is in jeopardy.

In a similar case from Texas, a federal appeals court noted that EMTALA “requires hospitals to stabilize both the pregnant woman and her unborn child.”

Justice Amy Coney Barrett, one of the court’s conservative judges who voted to overturn Roe v. Wade, asked Turner if Idaho has put out any guidance about what medical treatments are covered by the law.

Turner says the law made clear there is no medical certainty requirement — it’s up to the physician to use their subjective “good faith medical judgment” that the abortion is a life-saving procedure.

Barrett pressed Turner on whether doctors would be prosecuted under Idaho’s state law if they choose to treat women who are at risk of losing organs or hemorrhaging blood.

Turner said “no” but Barrett pressed further.

“What if the prosecutor thought differently?” she asked.

“That’s the nature of prosecutorial discretion,” he replied.

The Idaho law at issue is an affirmative defense law. That means physicians can be charged for performing abortions if a prosecutor thinks they weren’t lifesaving. The doctor can then offer a legal defense that says they used their best judgment in the decision.

One of the questions posed by this case is whether abortion can be the standard medical treatment — in other words, the broadly accepted “standard of care” — for some rare but dangerous medical conditions, even if it’s to prevent hysterectomies or other serious medical problems. Some Idaho physicians have made exactly this argument in recent weeks.

Dr. Jim Souza, the chief physician executive of Boise-based St. Luke’s Health System, said last week that six pregnant women facing medical emergencies have been flown out of state for medical treatment since January. Previously, those women would have been treated at home, Souza said, and he estimated as many as 20 such cases would occur this year in St. Luke’s hospitals if the law is allowed to stand.

Federal laws often take precedence when they conflict with state laws. The Biden administration’s basic argument is that this federal law, EMTALA, trumps, or preempts, state abortion bans —at least in limited circumstances where an abortion is needed to stabilize an emergency situation.

Idaho says flatly that EMTALA does not preempt state abortion laws or specify what specific medical treatment a patient must receive.

We’re only hearing so far from the three liberal justices, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor. But to prevail, the liberals will need to draw the votes of at least two conservative justices. We haven’t heard anything so far to indicate where the conservatives stand.

Turner says EMTALA’s requirements depend in part on whether the right doctors are available — and that’s the provision of state licensing. The Idaho law says doctors can lose their license and face criminal penalties if they perform abortions outside of life-saving emergencies. He’s suggesting that means the doctors simply aren’t available for nonlifesaving abortions in Idaho, because the state gets to set licensing requirements.

The court’s more liberal judges are immediately skeptical of Idaho’s arguments that states, not the federal government, should be able to ban hospitals from providing certain emergency care to patients.

“We can take off the table this idea that just because it’s the state and it’s health care that the federal government has nothing to say about it. The federal government has plenty to say,” Justice Elena Kagan told Turner.

Joshua Turner, the Idaho Attorney General’s chief of constitutional litigation and policy, opened arguments by saying EMTALA works precisely because the states regulate doctors and the practice of medicine.

Forty-five “friend of the court” briefs have been filed by groups wanting to weigh in on the case, most of them opposing the Idaho law. One of them includes Jennifer Adkins, an Idaho woman who had to travel out of state for an abortion after learning she was at high risk for developing mirror syndrome, a rare and potentially life-threatening pregnancy complication. Adkins is also suing over the abortion ban in state court.

Other friend of the court briefs have come from the Foundation for Moral Law – which contends the federal government is trying to circumvent Idaho law by allowing emergency room abortions – and businesses like Lyft and Tinder – which say the law makes it harder to recruit workers and hinders the participation of women in the workforce.
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This story has been corrected to restore a dropped reference to Lyft and Tinder, which are the groups who say the Idaho law makes it harder to recruit workers.

Some groups are hoping to restore abortion access in Idaho regardless of the Supreme Court’s ruling. A new organization, Idahoans United for Women & Families, announced this week that it was launching a fundraising campaign to explore an abortion-access ballot initiative in the state. If the group is successful, the initiative would be put to voters in 2026.

“Abortion saves lives,” reads signs displayed by abortion rights supporters. Opponents are displaying a sign reading, “Emergency rooms are not abortion clinics.”

The first was a case that could limit access to the abortion pill mifepristone, which could have far-reaching implications for millions of American women and for scores of drugs regulated by the Food and Drug Administration.

A group of anti-abortion doctors had asked the court to restrict access to mifepristone and to limit when in a pregnancy it could be used.

The court heard oral arguments on the case in March and did not appear ready to limit access to the drug. A ruling is expected this summer.

▶ Read key takeaways from the oral arguments in the mifepristone case.

Six in 10 U.S. adults say the outcome of the 2024 presidential election will be “extremely” or “very” important for abortion policy, according to an AP-NORC poll conducted in November. Women (66%) are more likely than men (53%) to see the outcome as at least very important on this issue. And Democrats (76%) are more likely than the general population, independents (48%) or Republicans (47%) to say this.

In January, the Supreme Court issued a ruling allowing Idaho to enforce its strict abortion ban, even in medical emergencies, while the legal fight continued.

The justices said put on hold a lower court ruling that had blocked the Idaho law in hospital emergencies, based on a lawsuit filed by the Biden administration.

▶ Read more about the legal steps that brought this case before the Supreme Court.

Idaho’s law allows abortion only if the life, not the health, of the mother is at risk. But the state’s attorney general has argued that its abortion ban is “consistent” with federal law, which calls for emergency rooms to protect an unborn child in medical emergencies.

“The Biden administration has no business rewriting federal law to override Idaho’s law and force doctors to perform abortions,” Idaho Attorney General Raúl Labrador said in a statement earlier this year.

Now, the Supreme Court will weigh in. The case could have implications in other states like Arizona, which is reinstating an 1864 law that bans all abortions, with an exception only if the mother’s life is at risk.

About 8 in 10 Americans (81%) see the abortion debate in the U.S. as an issue of individual rights and freedoms, according to a KFF poll conducted in February. Nearly all Democrats (94%) and nearly two-thirds of Republicans (64%) agree on this characterization.

But Democrats and Republicans diverge when it comes to whether abortion should be considered a health care issue. About 7 in 10 U.S. adults say it should be, including 82% of Democrats. Only about half of Republicans (52%) agree. Republicans are more likely than Democrats and independents to consider abortion a moral issue (81% say this) or a religious issue (55%).

One woman miscarried in the lobby restroom of a Texas emergency room as front desk staff refused to check her in.

Another woman learned that her fetus had no heartbeat at a Florida hospital, the day after a security guard turned her away from the facility.

And in North Carolina, a woman gave birth in a car after an emergency room couldn’t offer an ultrasound. The baby later died.

Complaints that pregnant women were turned away from U.S. emergency rooms spiked in 2022 after the U.S. Supreme Court overturned Roe v. Wade, federal documents obtained by The Associated Press reveal.

The cases raise alarms about the state of emergency pregnancy care in the U.S., especially in states that enacted strict abortion laws and sparked confusion around the treatment doctors can provide.

It’s happened despite federal mandates that the women be treated.

Federal law requires emergency rooms to treat or stabilize patients who are in active labor and provide a medical transfer to another hospital if they don’t have the staff or resources to treat them. Medical facilities must comply with the law if they accept Medicare funding.

The case before the Supreme Court today could weaken those protections.

▶ Read more about the state of emergency pregnancy care.

Since the Supreme Court overturned the constitutional right to an abortion, President Joe Biden, a Democrat, has repeatedly reminded hospitals that his administration considers an abortion part of the stabilizing care that EMTALA requires facilities to provide.

The administration argues that Idaho’s law prevents ER doctors from offering an abortion if a woman needs one in a medical emergency.

But Idaho’s attorney general has pointed out that EMTALA also requires hospitals to consider the health of the “unborn child” in its treatment, too.

▶ Read more about EMTALA, the patient protection law at the heart of today’s case.

Nearly 9 in 10 adults (86%) say they support protecting access to abortion for patients experiencing a miscarriage or other pregnancy-related emergencies, according to a KFF poll conducted in February. About 9 in 10 Democrats and independents, as well as approximately 8 in 10 Republicans, favor access to abortion in these crisis situations.

However, many Americans make a distinction between supporting abortion access in an emergency scenario and guaranteeing a federal right to abortion. The same poll found about two-thirds of Americans back a national right to abortion, including nearly 9 in 10 Democrats. Two-thirds of independents, but just 43% of Republicans, agree.

Simply put, the law at the heart of this case requires emergency rooms to offer a medical exam if you present at their facility. The law applies to nearly all emergency rooms — any that accept Medicare funding.

Those emergency rooms are required to stabilize patients if they do have a medical emergency before discharging or transferring them. And if the emergency room doesn’t have the resources or staff to properly treat that patient, staff are required to arrange a medical transfer to another hospital, after they’ve confirmed the facility can accept the patient.

So, for example, if a pregnant woman shows up at an emergency room concerned that she is in labor but there is no OB/GYN on staff, hospital staff cannot simply direct the woman to go elsewhere.

▶ Read more about EMTALA, the patient protection law at the heart of today’s case.

The Supreme Court will hear arguments Wednesday in a case that could determine whether doctors can provide abortions to pregnant women with medical emergencies in states that enact abortion bans.

The Justice Department has sued Idaho over its abortion law, which only allows a woman to get an abortion when her life — not her health — is at risk. The state law has raised questions about when a doctor is able to provide the stabilizing treatment that federal law requires.

The federal law, called the Emergency Medical Treatment and Active Labor Act, or EMTALA, requires doctors to stabilize or treat any patient who shows up at an emergency room.