Female Supreme Court justices push back most strongly on Idaho abortion ban

A divided Supreme Court seemed skeptical that Idaho’s strict abortion ban conflicts with a federal emergency care law, but there appeared to be a split by gender as well as ideology during the nearly two hours of argument.

The four female justices, including conservative Amy Coney Barrett, pushed back the hardest against Idaho’s assertion that its law, which prohibits doctors from performing an abortion except when a woman’s life is in danger, supersedes the federal emergency care statute known as EMTALA, or the Emergency Medical Treatment and Active Labor Act.

Doctors face up to five years in prison for violating Idaho’s law.

The case centers on EMTALA, which requires federally funded hospitals to provide stabilizing care to emergency room patients no matter their ability to pay.

The justices are weighing an appeal brought by Idaho officials who are contesting a lawsuit filed by the Biden administration. The Biden administration sued Idaho over its abortion ban just weeks after the Dobbs ruling in 2022.

The Biden administration argues that even in states where abortion is banned, EMTALA says hospitals must be allowed to terminate pregnancies in rare emergencies where a patient’s life or health is at serious risk.

Idaho argued the administration is trying to use the law to create a national abortion mandate for hospitals. They said federal law doesn’t dictate the kind of care people receive, only that they are stabilized.

The case marked the second time in as many months the Supreme Court has heard an abortion argument after ostensibly returning the issue to the states, and the case represents the latest legal challenge that could reshape access to abortion across the country.

The liberal justices asked detailed questions about what would constitute a medical emergency, zeroing in on complications that would rob a woman of her reproductive organs or put her at risk of sepsis.

Justice Elena Kagan told Idaho’s attorney Joshua Turner that federal law says “you don’t have to wait until the person is on the verge of death.”

“If the woman is going to lose her reproductive organs, that’s enough to trigger this duty on the part of the hospital to stabilize the patient. And the way to stabilize patients in these circumstances, all doctors agree,” Kagan said.

Justice Sonia Sotomayor gave several examples of real-life situations in which women have faced medical but not necessarily life-threatening emergencies where doctors had to decide whether to authorize an abortion.

In one example, she cited the case of a Florida woman who went to the ER at 16 weeks pregnant “because she felt the gush of fluid leave her body.”

The doctors believed terminating her pregnancy was needed to reduce the possibility of experiencing sepsis and uncontrolled hemorrhage, but they told her to go home and would not treat her because she wasn’t at risk of death.

“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?” Sotomayor asked Turner. 

Barrett had sharp questions for Turner over just how much discretion doctors really have to make decisions in medical emergencies that may not be life-threatening.

Turner argued that the laws allow decisions to be made on a case-by-case basis, but Barrett was critical of that argument and accused Turner of “hedging.”

Barrett also questioned how much daylight there was between Idaho’s argument and the Biden administration’s interpretation of the law, at one point asking whether there was really much of a conflict between the statutes.

Barrett’s questioning doesn’t always give an indication of how she will vote. The three liberal justices need at least two conservatives to side with them in order for the Biden administration to win the case.

Most of the conservative justices seemed skeptical of the Biden administration’s argument, and they framed their objections as federal government overreach into state autonomy.

Justice Neil Gorsuch, for instance, asked if the federal government could use health care funding programs to turn state regulation of medicine into a federal function.

“Could the federal government condition the receipt of funds on hospitals that they comply with medical ethics rules provided for by the federal government?”

Solicitor General Elizabeth Prelogar assured Gorsuch that scenario wasn’t at issue in the case.

Justice Samuel Alito at one point asked Prelogar to explain why the term “unborn child” is mentioned in the law. 

“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions,” Alito asked. “Have you ever seen an abortion statute that uses the phrase unborn child? Doesn’t that tell us something?”

Updated at 3:10 p.m. EDT