Hospitals across the country have long operated under the same federal law that says they must treat and stabilize all patients when they have a medical emergency.
But in states that now ban abortions and have limited or no health exceptions to these restrictions, medical providers face an impossible situation. They can administer a medically necessary abortion and violate state law, potentially facing jail time and losing their licenses.
Or, they can decide not to provide the abortion and violate federal law, potentially resulting in the patient experiencing significant harm or even dying.
The Supreme Court heard oral arguments on this legal conflict on April 24, 2024, as it considered Moyle v. United States. This case centers on Emergency Medical Treatment and Labor Act, or EMTALA, a federal law that was designed to prevent hospital emergency rooms from refusing to treat patients who couldn’t pay.
The court is considering the relationship between EMTALA and Idaho’s law – a near total abortion ban which does not provide an exception to protect the pregnant person’s health, but has an exception when “necessary to prevent death”.
While the positions of some of the more conservative and more liberal justices seemed clear during oral arguments on April 24, it was harder to tell exactly where others, especially Justice Amy Coney Barrett and Chief Justice John Roberts, stood. It was notable that all of the women on the court, including Barrett, seemed more willing than their male colleagues to ask questions about the stark implications of Idaho’s law and the suffering it can impose on pregnant people.
EMTALA requires hospitals that receive Medicare funding to provide stabilizing care to all patients if their health – or, for pregnant people, “the health of the woman or her unborn child” – is in “serious jeopardy.”
Almost all hospitals in the country get Medicare funding, so this law applies to nearly all of them.
As scholars of reproductive justice, we believe that this case has implications that stretch well beyond abortion and into other thorny issues, like the legal status of a fetus and the ability of state lawmakers to dictate medical care.
The Supreme Court hears the case
During oral agruments, Elizabeth Prelogar, the U.S. solicitor general, emphasized that when abortion is the only way to stabilize a pregnant patient in an emergency, the pregnancy is usually not viable. In other words, the only option is to protect the health of the pregnant patient.
As Prelogar said, delaying care in the way that Idaho’s law would require “stacks tragedy upon tragedy.”
Justice Elena Kagan noted that in the few months since the Idaho abortion law was enacted, six pregnant women were airlifted to neighboring states for medical care. In contrast, only one woman was airlifted in 2021, before Idaho’s law was enacted.
Kagan pointed out that, “It can’t be the right standard of care to force somebody onto a helicopter.”
Indeed, Prelogar and an amicus brief – filed by patients who were denied stabilizing care during obstetrical emergencies – noted that abortion bans like Idaho’s lead to the very kind of patient dumping that EMTALA was enacted to prevent. When these women showed up needing emergency care, they were sent home and told to return when their health worsened, which left many of them with serious health complications.
The EMTALA case could also play an important role in the ongoing debate about whether fetuses are persons. Idaho, for example, argues that EMTALA requires the pregnant patient and “the unborn child” to be treated equally. Justice Samuel Alito seemed to take that argument seriously, saying on Wednesday that, “performing an abortion is antithetical to a duty” to the unborn child.
Another issue that came up during questioning by Barrett, Justice Neil Gorsuch, and Roberts was whether a hospital’s moral or religious objection to abortion allows it to deny abortions – even when EMTALA would require one. Prelogar conceded that both individual providers and hospitals could assert conscience objections.
Why the Supreme Court is considering EMTALA and Idaho’s abortion ban
Shortly after the Supreme Court overturned the federal right to get an abortion in June 2022 in Dobbs v. Jackson Women’s Health Organization, the U.S. Secretary of Health and Human Services reminded doctors that they must provide medical treatment if a pregnant person has an emergency medical condition. And if an abortion is the best “stabilizing treatment necessary” to help the pregnant person, they must offer it.
The letter emphasized that this federal requirement applies even if the physician is practicing in a state with an abortion ban that doesn’t include exceptions for the “life and health of the pregnant person.”