The Biden administration has asked the Supreme Court to overturn a state pro-life protection by arguing that a federal law designed to protect the “unborn child” requires doctors to carry out abortions.
In arguments before the Supreme Court, the administration’s top legal advocate asked justices to strike down an Idaho law protecting most children from abortion on the grounds that it conflicts with the Emergency Medical Treatment & Labor Act (EMTALA).
But “EMTALA doesn’t address abortion. EMTALA addresses the issue of whether access to health care is available to people who are indigent, whether hospitals can turn away people who don’t have the means to pay for hospitalization or ER services,” Idaho Attorney General Raul Labrador (R) told “Washington Watch” on Thursday. The Biden administration’s argument “turns EMTALA on its head. It turns jurisprudence for the last 40 years on its head.”
The EMTALA law, signed into law by pro-life President Ronald Reagan in 1986, intended to prevent hospitals from refusing to care for sick people who are uninsured or cannot pay for bona fide medical care. The text of EMTALA states four times that doctors must care for a pregnant woman or her “unborn child.” For instance, the law bars physicians from any action that “may pose a threat to the health or safety of the woman or the unborn child.”
“When President Reagan signed EMTALA, he never intended that it would be used as a Trojan horse for mandatory abortion,” stated Blaine Conzatti, president of the Idaho Family Policy Center, which filed two amici briefs in the case. “The language of EMTALA is clear: Emergency room physicians are required to do everything possible to save the lives of both mother and baby.”
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Justices noticed the incongruity during oral arguments in Moyle v. United States, which ran an exceptionally long one hour and 53 minutes on Wednesday, April 24. “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase ‘unborn child?’” asked Justice Samuel Alito, who authored the Dobbs decision.
“It seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child,” Alito continued. But carrying out an “abortion is antithetical to that duty.”
Protecting life motivated the statute at the heart of the lawsuit. After the Dobbs decision returned abortion to democratic control, Idaho enacted the Defense of Life Act, which would punish abortionists who take the life of an unborn child with two to five years in prison; they could also have their medical license suspended on the first offense and revoked for carrying out any subsequent criminal abortion. But the statute specifically states the law does not apply if an emergency doctor decides in good faith that an “abortion was necessary to prevent the death of the pregnant woman.” Furthermore, the law does not apply to “[m]edical treatment provided to a pregnant woman by a health care professional” that “results in the accidental death of, or unintentional injury to, the unborn child,” such as treating an ectopic pregnancy or caring for a miscarriage.
Yet the Biden White House took pains to blunt Americans from taking any actions that undermined the abortion industry, which is a major donor to Democratic causes in general and the Biden campaign specifically. “Right after the Dobbs decision, they sent a letter to every hospital in the United States saying that if they receive any federal funding, that they must provide abortions,” said Labrador. “And they make the claim in that letter that that the abortion laws of the various states was actually preempted by EMTALA.” Biden’s Department of Health and Human Services (HHS) issued a July 2022, guidance claiming that, under EMTALA, “Stabilizing treatment could include medical and/or surgical interventions,” specifically including “abortion … irrespective of any state laws or mandates that apply to specific procedures.”
The Biden administration won a judgment blocking Idaho’s pro-life law from taking effect from U.S. District Judge B. Lynn Winmill — a Clinton appointee with a history of controversial opinions, such as the 2018 Edmo v. Idaho Department of Corrections case, which ordered the state of Idaho to furnish male prison inmate Adree Edmo with a taxpayer-funded transgender surgery. (Winmill opted to move into semi-retirement by taking senior judge status in August 2021 — which allowed President Joe Biden to appoint one of Idaho’s two judges.) The 9th Circuit Court of Appeals put his decision on hold while the case makes its way through the courts.
Critics say the Legal Left is trying to shoehorn abortion into any existing statute and override state lawmakers through presumption. “It’s the other side that is extreme, that they want abortions available at all instances of the stages of pregnancy,” said Labrador. “I think most people are closer to the Idaho position than they are to the more extreme position” — a position borne out by decades of polling data.
To offset an unpopular abortion position in an election year, pro-life advocates state, Democrats portray Republicans as willing to let women die without miscarriage treatment — a revival of its “war on women” rhetoric. “The Biden administration’s attack on Idaho’s Defense of Life law is more of a PR stunt to spread abortion lobby misinformation than it is a valid legal strategy to take down states’ pro-life laws,” said SBA Pro-Life America’s State Public Affairs Director Kelsey Pritchard in a statement emailed to The Washington Stand. “Pregnant women can receive miscarriage care, ectopic pregnancy care and treatment in a medical emergency in all 50 states. Every pro-life law allows this.”
Vice President Kamala Harris has repeatedly blamed pro-life laws for compelling pregnant women to have “miscarriages in toilets” — ironically, the outcome produced by chemical abortion, which the Biden-Harris administration promotes. In August 2022, Karine Jean-Pierre claimed that, due to a Texas pro-life law, pregnant women “can now be denied this same life-saving care” and “may die as a result.” Pro-abortion activists held signs outside the High Court during oral arguments alleging, “Abortion saves lives.”
Some in the legacy media have parroted these claims. “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. … The case before the Supreme Court today could weaken those protections,” asserted the Associated Press without proof. Pro-life advocates point out that all state protections have exceptions to preserve the mother’s life and that abortion activists’ claims may be confusing doctors and discouraging women from getting needed care.
Abortion lobbyists say their interest is in using the courts against pro-life doctors, nurses, and institutions that resist carrying out abortions. Molly Duane of the pro-abortion Center for Reproductive Rights told reporters on a press call that the abortion industry wants the federal government to use EMTALA, in Politico’s words, “to go after hospitals in other states.” Pro-abortion activists with the Women’s National Law Center chanted “Whose courts? Our courts!” during oral arguments.
At the Supreme Court Wednesday, the Biden administration raised the link between accepting federal funds and carrying out “emergency” abortions. Solicitor General Elizabeth Prelogar said receiving Medicare and Medicaid funds comes with strings attached. “Could the federal government condition the receipt of funds on hospitals that they comply with medical ethics rules provided for by the federal government?” asked Justice Neil Gorsuch, even if such conditions required abortion.
“I think that very likely Congress could make those kinds of judgments and attach conditions to the receipt of federal funds,” replied Prelogar.
“If you’re unclear whether abortion is a federal and state issue, today’s hearing at the Supreme Court should remove all doubt,” said Students for Life Action Government Affairs Coordinator Savanna Deretich outside the court as oral arguments took place. “EMTALA has been twisted by Biden’s abortion radicals to demand that in states with protective laws that embrace the preborn be forced to allow abortions in an ER.”
Inside the courtroom, Justice Sonia Sotomayor, part of the court’s liberal bloc, likened banning abortion to a theoretical state law instructing doctors, “Don’t treat diabetics with insulin. Treat them only with pills, Metformin.”
But forbidding any state regulation would turn the emergency room into a Wild West, argued Josh Turner, who represented the state. “If ER doctors can perform whatever treatment they determine is appropriate, then doctors can ignore not only state abortion laws but also state regulations on opioid use and informed consent requirements,” he told justices. “The answer doesn’t change just because we’re talking about abortion.”
“Nothing in EMTALA requires doctors to ignore the scope of their license and offer medical treatments that violate state law,” said Turner. “Section 1395, the Medicare Act’s opening provision, forbids the federal government from controlling the practice of medicine. That’s the role of state regulation.”
Turner highlighted the fact that leading medical groups do not endorse abortion as emergency treatment for many conditions. The American College of Obstetricians and Gynecologists (ACOG) “doesn’t just knee-jerk say an abortion is the standard of care” in all pregnancy-related complications, he said. “ACOG itself says that expectant management” — medically monitoring a pregnant mother’s health to observe any future changes — “is oftentimes the appropriate standard of care.”
“Idaho does not require that doctors wait until a patient is on the verge of death,” clarified Turner, citing the Idaho Supreme Court’s Planned Parenthood v. Wasden ruling.
The Biden administration seemed to make one significant, if legally questionable, concession during oral arguments. Under questioning, Prelogar said abortion could not be used as an emergency treatment for mental health conditions, because it “wouldn’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place.” A distraught mother demanding an abortion “might not be in a position to give any informed consent. Instead, the way you treat mental health emergency is to address what’s happening in the brain.”
Abortion “is not the accepted standard of practice to treat any mental health emergency,” Prelogar said.
But she may merely be attempting to downplay the impact of folding abortion into EMTALA coverage. The American Psychiatric Association has declared, “Freedom to act to interrupt pregnancy must be considered a mental health imperative with major social and mental health implications” in a 2023 position paper. “That sounds like a necessity to me,” countered Turner.
The APA opposes “all constitutional amendments, legislation, and regulations curtailing family planning and abortion services to any segment of the population.” Such broad language might be cited “if a woman presents at seven months pregnant in an Idaho emergency room and says, ‘I’m experiencing severe depression from this pregnancy, I’m having suicidal ideation from carrying this pregnancy,’” Turner told Justice Brett Kavanaugh.
The mother’s psychological care has justified abortion in the past under the broad “health” exception created by Roe v. Wade’s 1973 companion case, Doe v. Bolton. Doe held that “all factors physical, emotional, psychological, familial, and the woman’s age relevant to the well-being of the patient … may relate to health.”
Failed 2016 presidential candidate Hillary Clinton posted her own dubious jurisprudential argument on X, claiming that emergency or non-emergency cases would contradict the right to “life, liberty, and the pursuit of happiness” (which is in the Declaration of Independence, not the Constitution). She chided the “MAGA Supreme Court majority,” adding, “This is horrifying, and it is because of Donald Trump.”
Based on arguments and the law, legal experts say, the justices should side with Idaho on the merits. “The Supreme Court should uphold Idaho’s law and ensure that emergency room doctors are not forced to end lives,” said Alliance Defending Freedom Senior Counsel and Vice President of Appellate Advocacy John Bursch in a statement emailed to The Washington Stand last month.
The EMTALA case is one of two abortion cases the Supreme Court will address this term. The other dealt with FDA approval of the abortion pill mifepristone. Justices will likely rule in June or July.
“One thing is certain,” said Conzatti: “Whatever their decision is, it will have a far-reaching impact for pro-life protections across the country.”
LifeNews Note: Ben Johnson is senior reporter and editor at The Washington Stand.
