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.

Several of the justices are asking about Congress’ ability to impose requirements on hospitals in exchange for providing funding.

In this case, one of the issues at play is whether the government can require hospitals that receive federal Medicare funding to perform abortions in emergency situations.

Conservative Justice Amy Coney Barrett asked how far the government’s argument could be carried: Could a future administration withhold Medicare funding from hospitals, for instance, if they performed gender transition surgeries?

Conservative Justice Neil Gorsuch picked up on the theme with a series of similar, skeptical questions.

“Could the federal government essentially regulate the practice of medicine in the state through the spending clause?” he asked US Solicitor General Elizabeth Prelogar. “It could ban abortion across the nation through the use of it spending clause authority?”

Prelogar responded, essentially, yes.

“Congress,” she said, “does have broad authority.”

Chief Justice John Roberts asked whether individual doctors could have a “conscious objection,” or could refuse to provide an abortion because of their personal religious convictions.

If doctors morally object to performing an abortion, Roberts asked, then how would hospitals still meet the their requirement under the Emergency Medical Treatment and Labor Act (EMTALA) to provide care.

Prelogar said yes, an individual doctor could consciously object to terminating a pregnancy.

However, if the hospital itself is subject to EMTALA, then “the hospital should have plans in place to honor the individual doctor’s conscience objection while ensuring appropriate staffing for emergency.”

Justice Amy Coney Barrett, who will be a key vote to decide the case, earlier asked a similar question, showing how concerned the two conservatives are about that issue.

US Solicitor General Elizabeth Prelogar said in her opening arguments that federal law guarantees pregnant women in medical crisis be able to get stabilizing care.

“[The Emergency Medical Treatment and Labor Act]’s promise is simple but profound,” Prelogar said. “No one who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care.”

Prelogar continued: “This case is about how that guarantee applies to pregnant women in medical crisis.”

“But Idaho makes termination a felony punishable by years of imprisonment unless it’s necessary to prevent the woman’s death,” she added.

Remember: The US Department of Justice brought a lawsuit against Idaho claiming the federal law overrides the state’s abortion ban in situations where a woman’s pregnancy is risking serious harms to her health that are not yet life threatening.

Though the issue was not explored deeply before the arguments, the question has long simmered in the background of the emergency abortion case: Can a woman who is pregnant receive an abortion at a hospital under the federal law by claiming a mental health illness, such as severe depression?

Conservatives are concerned about that possibility because they believe it would lead to more abortions.

“I really want a simple, clear cut answer to this question,” Conservative Justice Samuel Alito asked. “Does ‘health’ mean only physical health or does it also include mental health?”

US Solicitor General Elizabeth Prelogar, arguing for the Biden administration, said that the federal law itself would require hospitals to stabilize a pregnant patient with “grave mental health emergencies” but said that it wouldn’t lead to abortions.

“Let me be very clear about our position,” she said. “That could never lead to pregnancy termination because that is not the accepted standard of practice to treat” any mental health emergencies.

Anti-abortion activists and abortion rights advocates gathered outside the Supreme Court on Wednesday ahead of one of the most significant abortion cases since the high court overturned Roe v. Wade two years ago.

See photos from the scene:

Justice Samuel Alito questioned why the Justice Department believes it can impose restrictions on Idaho state law as it relates to hospital decisions.

US Solicitor General Elizabeth Prelogar said that because hospitals are accepting federal money for programs like Medicare, they have to abide by the federal rules.

In response, Alito asked how the argument squared with Congress’ Spending Clause power.

“The theory is, Congress can tell a state or any other entity or person, ‘Look, here is some money or other thing of value, and if you want to accept it, fine, then you have to accept certain conditions,’” he said.

“But,” he continued, “How does the Congress’ ability to do that, authorize it to impose duties on another party that has not agreed to accept this money?”

With the first part of Idaho’s arguments wrapping it up, it appears that Justices John Roberts and Amy Coney Barrett, who are conservative, will be key votes in the case.

Justice Brett Kavanaugh, who sometimes sides with the liberals, has signaled skepticism of the Biden administration’s arguments about the reach of the federal emergency care law.

Barrett, however, had several tough questions for Idaho attorney Joshua Turner and appeared to have some difficulties with how he described Idaho’s ban would apply in medical abortions.

Roberts had fewer questions during Turner’s presentation, but zeroed in on how the life-of-the-mother exemption in Idaho’s law operates and who decides whether a doctor had a “good faith” reason to perform abortion under it.

Now it’s the Biden administration’s turn to respond as US Solicitor General Elizabeth Prelogar takes the well of the ornate courtroom and begins her presentation to the justices.  

Just like Idaho’s attorney, Prelogar will speak for about two minutes uninterrupted and will then begin fielding questions in rapid succession. As the Justice Department’s top appellate attorney, Prelogar’s presence underscores the significance of the case for the administration.

Prelogar will argue that federal law supplants the state’s abortion ban when women show up at an emergency room in Idaho with complications from a pregnancy that are not life threatening but that risk the health of the mother.

Justice Brett Kavanaugh, often a critical vote to watch in major Supreme Court arguments, questioned just how much of a conflict exists between the federal law at issue in the case and Idaho’s strict abortion ban.

“Is there any condition you’re aware of where EMTALA requires an abortion where Idaho law… does not?” Kavanaugh asked.

That question picks up on an argument Idaho has made throughout the case: That there is no conflict between the federal and state laws, because the state law already exempts most emergency situations.

But the Biden administration has countered there is a wide gap between Idaho’s exception — for the life of the pregnant woman – and the requirement of the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, to stabilize patience to ensure the health of the pregnant woman.

Other than mental health, Kavanaugh asked, “is there any other condition identified by the solicitor general where you think Idaho law would not allow a physician” to perform an abortion.

Josh Turner, arguing for Idaho, said he did believed the answer was “no.”

Conservative Justice Neil Gorsuch asked whether the Idaho law allowed for abortions in the case of a pregnant person suffering from a medical condition that may result in death in the future, but where death isn’t necessarily imminent.

“As I read your briefs, you thought Idaho thinks that in cases of molar and ectopic pregnancies, for example, that an abortion is acceptable,” Gorsuch asked.

“Correct,” Idaho attorney Joshua Turner said.

“It doesn’t matter whether it happens tomorrow or next week or a month from now?” Gorsuch asked.

Turner responded, saying that “there is no imminency requirement.”

The all-female, liberal wing of the Supreme Court grilled Idaho attorney Joshua Turner on hypotheticals in which pregnancy complications pose serious health risks to women, forcing the hearing into discussion of the grisly medical emergencies at the heart of the case.

Sotomayor started the line of questioning, asking Turner point-blank whether, under Idaho’s interpretation of the federal emergency care law, states could prohibit abortions even if a woman’s life is at risk.

Justice Ketanji Brown Jackson zeroed in on the key “conflict” in the case: scenarios where an abortion is necessary to stabilize a woman but is not necessary to save her life.

Justice Elena Kagan picked up on the line of inquiry, asking Turner a situation in which a woman could lose her reproductive organs.

As Turner sought to grapple with the “difficult” situations in her question, Sotomayor jumped back in, pushing Turner on a pregnancy complication that put a woman at risk of sepsis or hemorrhaging.

She also asked about a patient experiencing complications who was denied an abortion earlier in her pregnancy. In the scenario, by the time the woman was able to deliver, the baby had died and she had been forced to get a hysterectomy in the meantime.

The extended questioning on the Idaho abortion ban’s role in medical emergencies followed the hearing’s drier start that focused on legal questions about federal preemption of state medical regulations.

Turner’s answers prompted some skeptical questions from Justices Amy Coney Barrett and John Roberts, who could be key swing votes in the case.

One theme emerging from the court’s conservatives early in today’s arguments is how much discretion doctors have to make decisions in emergency situations without running afoul of Idaho’s ban.

In one exchange, Justice Amy Coney Barrett claimed Idaho’s attorney appeared to be “hedging” on the question of borderline calls and questioned whether he was attempting to move the goal posts to suggest those circumstances could subject a doctor to prosecution.

It was a notably aggressive question from a member of the court’s conservative wing.

Some context: The state, in its briefing, claimed the law exempts certain conditions, such as ectopic pregnancies, from the ban.

Chief Justice John Roberts also jumped into the fray, asking about the process for how the state determines if a doctor made the right call.

“What happens if a dispute arises with respect to whether or not the doctor was within the confines of Idaho law?” he asked.

Idaho’s attorney responded by noting the doctor’s medical judgement would be based, in part, on “good faith.”

Because he tends to lean more toward the ideological center than some of his conservative colleagues, Justice Brett Kavanaugh is always important to watch in major cases, especially those dealing with abortion.

But he also may be worth watching during the oral arguments underway now because of his concurrence in the 2022 decision to overturn Roe v. Wade. Kavanaugh joined the majority in that ruling and wrote separately to explain what he viewed as the implications of the court’s decision.

Several times, Kavanaugh stressed the importance of exceptions to abortion bans for the life of a mother. He did not, however, discuss exceptions for the health of a mother. That distinction – between a life-threatening complication and one that puts a mother’s health at stake but not her life – is central to Wednesday’s case.

“After today’s decision, all of the states may evaluate the competing interests and decide how to address this consequential issue,” Kavanaugh wrote at the time, adding a footnote that appeared to offer a limited caveat.

“In his dissent in Roe, Justice [William] Rehnquist indicated that an exception to a state’s restriction on abortion would be constitutionally required when an abortion is necessary to save the life of the mother,” Kavanaugh wrote in the footnote. “Abortion statutes traditionally and currently provide for an exception when an abortion is necessary to protect the life of the mother. Some statutes also provide other exceptions.”

Justice Sonia Sotomayor asked Joshua Turner, the lawyer for the state of Idaho, about specific, real-life scenarios where pregnant people required emergency abortions.

In one case, she said, a woman in Florida was diagnosed with pre-term premature rupture of membranes, known as PPROM, but released from the hospital. Later, she returned to the hospital, Sotomayor said, and received an abortion “because she was about to die.”

There are several circumstances in which an abortion may be the only option to protect the health and life of the pregnant person, according to doctors, who add this is true “without question.”

The American College of Obstetricians and Gynecologists, a professional organization that represents the majority of practitioners in the United States, said in an amicus brief the majority of emergency providers treat pregnant patients in virtually every shift. It said in some circumstances those practitioners must treat dangerous and serious conditions that may require an abortion to protect the patient’s life or health.

Pregnancy can be dangerous, particularly in the United States, which has the highest rate of maternal mortality in the developed world.

The question of when an abortion is medically indicated is “really broad and extends across medical specialties,” according to the American Medical Association.Dangerous conditions can include when the amniotic sac ruptures early, presenting a major risk for infection, sepsis or placental abruption when the placenta separates from the inner wall of the uterus, which can result in uncontrollable bleeding and may lead to cardiac arrest, kidney failure or miscarriage.

About 10% to 20% of pregnancies end in miscarriage and many don’t require medical intervention, but some may require treatment using the same procedure used in an abortion. Miscarriages can put someone’s life at risk because of serious blood loss or infection if the miscarriage is not complete.

Justice Elana Kagan raised the scenario of a woman who would lose her ability to have children unless she had an abortion, noting that under Idaho’s arguments, the answer would be “sorry, no abortion here.”

Idaho’s attorney Joshua Turner responded: “Your honor, the hypothetical you raise is a very difficult situation. And these situations – I mean nobody is arguing that they don’t raise tough medical questions that implicate deeply theological and moral questions.”

Conservative Justice Amy Coney Barrett pushed Idaho attorney Joshua Turner over when doctors could be criminally prosecuted for performing an abortion under the state law.

Joining the liberal justices in their forceful questioning of Turner, Barrett asked what happens if a doctor “reached the conclusion” in good faith that an abortion was medically necessary, but prosecutors disagreed.

“What if the prosecutor thought well, ‘I don’t think any good faith doctor could draw that conclusion. I’m going to put on my expert,’” Barrett said.

“That, your honor, is the nature of prosecutorial discretion and it may result in a case,” Turner responded.

Remember: Barrett was one of the five justices who voted in 2022 to overturn Roe v. Wade.

Justice Sonia Sotomayor pushed Idaho’s attorney on when federal law supersedes state law as it comes to emergency medical care.

“The whole purpose of preemption is to say that if the state passes a law that violates federal law, the state law is no longer effective,” Sotomayor said.

In a personal and pointed question, Sotomayor reframed the abortion disagreement to discuss a condition that she has: type 1 diabetes.

She challenged Idaho attorney Joshua Turner to imagine a situation in which a state law required a hospital to treat a diabetic person with only pills and not insulin.

“Federal law would say you can’t do that,” she said. “Medically accepted objective standards of care require the treatment of diabetics with insulin.”

“If objective medical care requires you to treat women … who present the potential of serious medical complications, and the abortion is the only thing that can prevent that, you have to do it,” she said. “Idaho law says the doctor has to determine not that there’s really a serious medical condition, but that the person will die. That’s a huge difference.”

Justice Elena Kagan leaned into the lawyer representing Idaho about whether the medical community has agreed that the appropriate standard care in some emergency circumstances is an abortion. Why, the liberal justice was essentially asking, can the federal government not require doctors in Idaho to meet that standard.

“Do you concede that with respect to certain medical conditions, an abortion is the standard of care?” Kagan asked the attorney, Joshua Turner.

“No,” Turner responded.

“In Idaho, there’s a life-saving exception for certain abortions,” Turner added. “And that is the standard of care, and the standard of care is necessarily set and determined by the state.”

But if the state concedes that medical standards can require an abortion to save the life of a mother, Kagan continued to ask, why can’t those standards also require an abortion in cases where a pregnant woman’s health is at stake?

Justice Sonia Sotomayor said that under Idaho’s arguments about the reach of the federal emergency care law, a state could ban abortion even in situations where a woman would die.

“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, a liberal justice, told Idaho attorney Joshua Turner.

Turner responded that he was aware of no state that lacks a life-of-the-mother exemption to its abortion ban.

Sotomayor jumped in, asserting that some states have been “debating” it.

Two of the court’s liberal justices – Elena Kagan and Ketanji Brown Jackson – quickly pushed back on a central argument raised by Idaho: That the federal law in question doesn’t conflict with Idaho’s strict abortion ban.

Kagan, in particular, rejected the idea that the federal law doesn’t require something from the state’s hospitals. It requires, Kagan said, hospitals to stabilize patients that arrive in emergency situations.

The Emergency Medical Treatment and Active Labor Act, also known as EMTALA, on its face, Kagan said, means that the regulation of medicine isn’t “all the state’s way.” If the state must concede that point, Kagan is arguing, then it must also concede that EMTALA may require abortions in medical emergencies.

The liberal justices are trying to make sure the arguments are framed in a way to keep the conservative majority from siding with Idaho.

Justice Clarence Thomas posed the first question during today’s arguments, which has become a common occurrence since Covid-19 forced the court to conduct arguments remotely for more than a year.

The conservative stalwart asked the attorney representing Idaho a friendly question on what entity, precisely, the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, regulates — the doctors or hospitals.

Idaho’s attorney responded that hospital and doctors are the party being regulated.

Joshua Turner, arguing on behalf of Idaho, told the Supreme Court in opening remarks Wednesday that nothing in the Emergency Medical Treatment and Labor Act preempts the state’s traditional power to regulate medicine.

The administration’s reading, Turner said, is “wholly untenable.”

“Licensing laws limit medical practice, that’s why a nurse isn’t able to perform open heart surgery,” he said. “The answer doesn’t change just because we’re talking about abortion.”

A law called the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, is at the heart of a Supreme Court case that is before justices on Wednesday. It became law in 1986 after studies showed that many hospitals were trying to save money by engaging in “patient dumping” or transferring a patient — often uninsured or a member of a minority community — to a public hospital without first providing appropriate care to stabilize them. 

A study at Cook County Hospital at the time the law passed found that “dumped” patients were twice as likely to die as those who were treated at the hospital where they initially sought care. About a quarter of patients were transferred in what was considered an unstable condition. 

EMTALA required all US hospitals that received Medicare money — essentially nearly all of them — to screen everyone who came to their emergency rooms to determine whether the person had an emergency medical condition. The law then requires hospitals, to the best of their ability, to stabilize anyone with an emergency medical condition or transfer them to another facility that has that capacity. The hospitals must also treat these patients “until the emergency medical condition is resolved or stabilized.” 

Why this matters to the Idaho case: In 1989, after reports that some hospitals were refusing to care for uninsured women in labor, Congress expanded EMTALA to specifically say how it included people who were pregnant and having contractions. In 2021, the Biden administration released the Reinforcement of EMTALA Obligation, which says the doctor’s duty to provide stabilizing treatment “preempts any directly conflicting state law or mandated that might otherwise prohibit or prevent such treatment” although it did not specify whether an abortion has to be provided.

In July 2022, the Biden administration’s guidance clarified that EMTALA includes the need to perform stabilization abortion care if it is medically necessary to treat an emergency medical condition.

Here’s a look at where abortion access stands in Idaho and across other states:

The Supreme Court’s arguments in what has the potential to be the most significant abortion case since the high court overturned Roe v. Wade two years ago are now underway.

First up is Josh Turner, the chief of constitutional litigation and policy of the Idaho attorney general’s office.

Turner is expected to argue that the federal government cannot supplant the state’s strict ban on abortion by relying on a Reagan-era federal law that requires hospitals to “stabilize” patients who need emergency care.

Reproductive rights and anti-abortion activists clashed in front of the Supreme Court on Wednesday just before arguments are slated to start in Moyle v. United States.

Justices are set to hear arguments regarding a law from the 1980s protecting a person’s right to an abortion if they have a life-threatening condition.

The two groups shouted phrases, including “abortion is health care” and “abortion is oppression,” while standing shoulder-to-shoulder, highlighting the tense divisions surrounding the issue.

No significant physical altercation has been seen, but they were shouting in each others’ faces at times.

The Supreme Court will soon hear arguments on whether Idaho’s abortion ban can be enforced in medical emergencies. Here are the key players in court today:

The justices:

Arguing in defense of the state abortion ban:

Arguing on behalf of the Biden administration: 

Order of proceedings: Turner, representing Idaho, is expected to be up first for arguments. Then, Prelogar will respond for the Biden administration in a presentation. Finally, Turner will return to the lectern for a five-minute rebuttal. 

Pregnancy complications are the fifth most common reason why women age 15 to 64 seek care at emergency departments in the United States, according to data published by the US Centers for Disease Control and Prevention’s National Center for Health Statistics. In 2021, pregnancy complications led to about two million emergency department visits, the CDC estimates.  

Warning signs of an emergency during pregnancy can include bleeding, chest pain and dizziness. There is not sufficient data to understand how many of these emergencies require an induced termination, or abortion.  

However, experts say that abortion bans may increase the number of pregnancy-related emergencies and that restricting the option to have an abortion in emergencies can threaten the health and livelihood of the pregnant person. 

“Abortion care is part of standard and proven medical practice to reduce risk and in some cases, save lives. Tying the hands of emergency medicine healthcare workers would pose a major threat to pregnant people and public health,” Dr. Ushma Upadhyay, a professor at the University of California, San Francisco’s Bixby Center for Global Reproductive Health, said in an email. 

“Abortion care is extremely safe, safer than continuing a pregnancy to term,” she said. 

More context: One study from 2015 found that only 0.23% of abortions — including medication and procedural cases — resulted in a major complication that required hospital admission, surgery or blood transfusion. Meanwhile, a 2012 study found that childbirth caused severe complications five times more often, or 1.3% of the time.

Maternal mortality in the US has increased sharply in recent years, rising from about 20 deaths for every 100,000 live births in 2020 to nearly 33 deaths for every 100,000 live births, according to a CDC report published last year. The latest abortion surveillance data from the CDC suggests that there was less than one death for every 100,000 legal abortions in the US. 

President Joe Biden on Tuesday launched one of his most forceful attacks of the 2024 campaign against presumptive Republican nominee Donald Trump – who he said was responsible for the “nightmare” caused by the overturning of Roe v Wade.

“For 50 years the court ruled that it was a fundamental constitutional right to privacy,” Biden said at a campaign stop.

“There’s one person who’s responsible for this nightmare, and he’s acknowledged, and he brags about it. That’s Donald Trump.”

Democrats have seized on abortion ahead of November, hoping it could spur moderate voters – particularly women – to turn out in droves against Trump by tying the abortion bans directly to him. Biden’s campaign often cites Democratic successes in the 2022 midterms and off-year elections since Roe was overturned as examples of the issue driving voters to the polls.

Biden also poked fun at the former president for describing “the Dobbs decision as a miracle.”

“Maybe it’s coming from that Bible he’s trying to sell,” Biden joked. “I almost wanted to buy one to see what the hell’s in it.”

Biden added: “Folks, it was no miracle — it was a political deal to get rid of Roe – a deal, a political deal he made with the evangelical base of the Republican Party.”

Read more on Biden and presidential abortion politics.

Arguing for Idaho is Josh Turner, a lawyer with Attorney General Raúl Labrador’s office who is making his debut at the Supreme Court.

Turner, whose title is chief of constitutional litigation and policy, joined Labrador’s office last year during a shakeup that involved several senior attorneys. He was previously a business litigation attorney at Faegre Drinker Biddle & Reath.

Turner told Law360 recently that there was “a lot of clamoring” to represent the state before the Supreme Court but that he was “thankful that the attorney general has confidence in me to deliver the argument and represent the people of Idaho.”

For the fourth time since she became the federal government’s top Supreme Court advocate, Solicitor General Elizabeth Prelogar is arguing an abortion-related case.

The dispute before the high court on Wednesday, about whether federal mandates for hospitals override strict state abortion bans in medical emergencies, shows how legal fights over abortion rights did not cease when the conservative majority ended a constitutional right to an abortion in 2022.

In the first two abortion-related cases Prelogar argued, the conservative majority rejected her calls that abortion rights be protected.

But she has eked out wins on other issues where the Biden administration was seemingly at odds with the court’s conservative proclivities, including in tussles over immigration policy and voting rights.

Prelogar, born in 1980, is a former Supreme Court clerk herself, having worked for both the late Justice Ruth Bader Ginsburg and Justice Elena Kagan. The Senate’s 53-36 vote confirming her as solicitor general made her the second women ever to serve in the role, with Prelogar following in the footsteps of Kagan, the solicitor general during the Obama administration.

An Idaho native, Prelogar attended Emory University and then Harvard Law School. She also clerked for her current boss, Attorney General Merrick Garland, when he was a DC Circuit judge, before her Supreme Court clerkships. She went on to litigate Supreme Court cases for private firms and worked on special counsel Robert Mueller’s investigation.

Read more about Elizabeth Prelogar’s career here.