Supreme Court weighs whether federal law allowing emergency abortions overrides state bans

It was a charged atmosphere at the Supreme Court as justices heard arguments in a major abortion case. The court looked at whether a federal law requiring hospitals to provide abortion care in emergencies would apply to states with strict bans. More than two dozen states ban or severely restrict abortion and six states have no health exceptions. Geoff Bennett discussed the case with Sarah Varney.

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Amna Nawaz: It was a charged atmosphere at the Supreme Court today, as the justices heard arguments in a major abortion case out of Idaho. The court looked at whether a federal law requiring hospitals to provide medical care in emergency situations would apply to states with strict abortion bans.

Currently, more than two dozen states ban or severely restrict abortion access but there are six states, in particular, including Idaho, with no health exceptions.

Geoff Bennett: The case brought protesters on all sides of the abortion issue to the Supreme Court today for what was the second case on reproductive care before the court in the last month.

Special correspondent Sarah Varney joins us. She’s spent years covering health care and is closely following the case.

Sarah, thanks so much for being with us.

The arguments today were lively and there was a lot of talk about this federal law and how it is applied. Walk us through the arguments.

Sarah Varney: So the Idaho law that you outlined went into effect at the Supreme Court overturned Roe v. Way about two years ago, and it made abortion illegal, except when a woman is about to die due to her pregnancy.

So the Biden administration sued Idaho, saying that the state’s ban conflicts with a federal law called EMTALA that stands for the Emergency Medical Treatment and Labor Act. And EMTALA basically requires hospitals to stabilize all patients, even if that requires an abortion, not just when the patient is about to die, but to preserve their health.

Geoff Bennett: And there were some intense exchanges during the session today, especially from the court’s liberal wing, who seemed to take issue with the Idaho law.

Let’s listen to Justice Sonia Sotomayor.

Sonia Sotomayor, U.S. Supreme Court Associate Justice: Idaho law says the doctor has to determine not that there’s merely a serious medical condition, but that the person will die.

Joshua Turner, Attorney: Yes.

Sonia Sotomayor: That’s a huge difference, counselor.

Joshua Turner: We agree that there is daylight between how the administration is reading EMTALA and what Idaho’s Defense of Life Act permits. We agree that there is a controversy here.

Sonia Sotomayor: No, no, no, no, there’s more than a controversy. 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.

Geoff Bennett: So what concern is she highlighting here?

Sarah Varney: Justice Sotomayor is saying that if the federal government can’t compel states to provide medical care, in the sense that it’s always going to be up to the state then to make that call, so then, conceivably, a state like Idaho, which does have fetal personhood, could prioritize fetal life over a pregnant woman’s life, even when that pregnancy is not likely to survive.

And the briefs in this case are full of real-life stories of pregnant women being denied standard medical care in Idaho and around the country. Justice Sotomayor described a real-life case of a woman in Florida. She was 16 weeks pregnant when she went to the E.R. And she felt a gush of water leave her body, as many of us who have been pregnant know that that’s a premature rupture, which puts you at risk for serious uncontrolled infection.

She was refused treatment because the fetus, which would not survive, was still alive. And, eventually, the woman bled out and was finally given an abortion. This was — these are the kinds of cases that the justices were bringing up today.

And the justices here were focused much more on the harm and suffering, permanent harm, hysterectomy, loss of fertility, that women face with pregnancy. And at one point, it was actually really surprising.

Justice Amy Coney Barrett, who is a staunch opponent of abortion rights, seemed kind of taken aback by what she was hearing that was happening at hospitals in Idaho and elsewhere.

Amy Coney Barrett, U.S. Supreme Court Associate Justice: I’m kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered. And you’re now saying they’re not?

Joshua Turner: No, I’m not saying that. That’s just my point, Your Honor, is that…

Amy Coney Barrett: Well, you’re hedging. I mean, Justice Sotomayor is asking you, would this be covered or not? And it was my understanding that the legislature’s witnesses said that these would be covered.

Joshua Turner: Yes, and those doctors said, if they were exercising their medical judgment, they could, in good faith, determine that lifesaving care was necessary. And that’s my point. Is this a subjective standard?

Amy Coney Barrett: But some doctors couldn’t. Some doctors might reach a contrary conclusion.

Geoff Bennett: So, Sarah, in the Dobbs decision, it was Justice Alito who seemed particularly focused on this matter of fetal life. And in today’s arguments, he talked a lot about unborn children.

Samuel Alito, U.S. Supreme Court Associate Justice: Regarding the status and the potential interests of an unborn child, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child.

But performing an abortion is antithetical to that duty.

Elizabeth Prelogar, U.S. Solicitor General: And in many of the cases you’re thinking about, there is no possible way to stabilize the unborn child because the fetus is sufficiently before viability, that it’s inevitable that the pregnancy is going to be lost.

But Idaho would deny women treatment in that circumstance.

Geoff Bennett: So put that portion of the arguments in context for us.

Sarah Varney: So Justice Alito here really appears ready to take up this question of fetal personhood, which has really been the ultimate goal of the anti-abortion movement for a long time.

Justice Gorsuch also mentioned fetal personhood during the arguments. There are laws in Idaho, Alabama, Texas, and many states that say that, from the very earliest moments of pregnancy, that that pregnancy is a full person under the law.

And Justice Alito’s Dobbs decision, as you said, and in the questioning in the mifepristone case and here today, really signals a willingness to go there and to essentially say that, if there’s a toss-up between having to choose between a woman’s life, a pregnant woman’s life, and a fetus’ life, that it’s up to the state then to decide who gets to win out in that contest.

Geoff Bennett: We know this case will likely reverberate beyond Idaho. What’s at stake here?

Sarah Varney: Well, Texas has also sued under a similar premise around EMTALA.

So, if the — if Idaho wins in this case, we can be sure that at least six states that don’t have this health exception for the mother will follow Idaho’s lead. I mean, we’re already seeing this really play out on the ground in emergency rooms.

So you would imagine that those types of cases of women showing up and being turned away from emergency rooms would just continue to escalate.

Geoff Bennett: “NewsHour” special correspondent Sarah Varney.

Sarah, thanks so much.

Sarah Varney: Thanks, Geoff.