Supreme Court hears oral arguments on whether ERs have to commit ’emergency’ abortions

The United States Supreme Court heard oral arguments on Wednesday in Moyle v. United States and Idaho v. United States, involving whether or not Idaho emergency room doctors can intentionally and directly end the lives of preborn children by abortion for allegedly “medically necessary” reasons. The Biden Department of Justice (DOJ) previously sued the state of Idaho, claiming the state’s Defense of Life Act — which protects preborn children from abortion — violates the Emergency Medical Treatment and Active Labor Act (EMTALA). The state of Idaho asked the Supreme Court to weigh in on the issue, and in January, the court agreed.

EMTALA requires that all hospitals receiving federal Medicare funds provide stabilizing treatment to patients in the emergency room during a medical emergency. The DOJ claims that women’s lives will be at risk if emergency room doctors cannot commit abortions — but induced abortion, in which a child is intentionally killed, is not a medically necessary act. Furthermore, early delivery — in which a preborn child is not intentionally killed — is not considered an induced abortion and is completely legal in the state, as are other treatments during emergency situations, including treatments for ectopic pregnancies and miscarriages. All of these procedures, which do not intentionally kill a preborn child, are permitted under Idaho’s law if the woman’s life is at risk, as well as in cases of rape or incest.

“Despite the portrayal by the media and the Biden administration, both Idaho law and EMTALA share a consistent goal: to protect everyone’s life, including unborn children,” Idaho Attorney General Raúl Labrador previously said in a statement. “Idaho’s law is perfectly consistent with EMTALA, which provides explicit protections for ‘unborn children’ in four separate places. The notion that EMTALA requires doctors to perform abortions is absurd. We are asking the Supreme Court to end the administration’s unlawful overreach and to respect the people of Idaho’s decision to protect life.”

Medical Emergencies

During the oral arguments, Justice Sonia Sotomayor relayed a story assumed to be that of Anya Cook, a Florida woman who experienced preterm premature rupture of membranes (PPROM). “This is a story of a real woman,” Sotomayor said. “She was discharged in Florida because the fetus still had fetal tones and the hospital said she’s not likely to die, but there are going to be serious medical complications.”

In Cook’s case, she was given antibiotics and then discharged from the hospital. PPROM would generally not qualify as needing to have an abortion committed in the emergency room; again, EMTALA is meant to have a patient be stabilized, and then sent to the appropriate medical department or facility to receive further, more specific, care.

In cases like Cook’s, for PPROM, the standard of treatment, as reported by Cleveland Clinic and Children’s Hospital of Philadelphia (CHOP), is expectant management — essentially, providing antibiotics if needed, admitting the patient, and carefully observing and waiting. If complications do arise, then an early delivery may be performed, but as noted, an early delivery is not the same thing as an induced abortion, in which a preborn child is intentionally killed. In Cook’s case, EMTALA would not apply; emergency room doctors should have stabilized her, and then transferred her to the hospital’s labor and delivery department to be cared for on a longer-term basis. The emergency room doctors themselves would not have been in a position where they would need to commit an abortion.

An early delivery might be necessary, but in some cases, it is not. With expectant management, the mother may be able to last to a point where the baby has reached viability and can be born, prematurely, but safely.

DOJ Solicitor General Elizabeth Prelogar, however, argued that there is no possible treatment in which a preborn child could survive PPROM, but this is patently false. In fact, a 2020 study on PPROM examined preterm infants delivered early at 23 weeks due to the condition and found a 28% survival rate. Read about some of those survivors here and here.

“Unborn Child”

Justice Samuel Alito noted the fact that the term “unborn child” — as noted earlier this year by Attorney General Labrador — is specifically mentioned in EMTALA as deserving protection. “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’?”

Prelogar claimed that the phrase was put into place in 1989 to address one specific issue during one specific time… and therefore, is not applicable today. “It’s not an odd phrase when you look at what Congress was doing,” she said. “There were well publicized cases where women were experiencing conditions their own health and life were not in danger, but the fetus was in grave distress and hospitals weren’t treating them.”

In a brief filed in the case, the Charlotte Lozier Institute said this was not the case.

“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.”

Mental Health and Conscience Rights

Another argument raised was that of mental health, in a situation in which a woman was so severely depressed that she might “need” to have her child intentionally killed at the emergency room. Justice Samuel Alito asked if “health” was to include mental health as well as physical, and Justice Amy Coney Barrett seemed skeptical of such a scenario qualifying for EMTALA. “It’s hard for me to see with a mental health condition that couldn’t be stabilized,” she said.

Prelogar, however, argued this was not something that would take place. “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.”

However, intentionally killing a child isn’t the ‘accepted standard of practice to treat’ any of the other pregnancy conditions raised by DOJ — not even PPROM.

Also argued was the issue of conscience protections; Prelogar said hospitals would need to determine what an individual doctor’s feelings on abortion were before staffing them in the emergency room. “The hospital should have plans in place to honor the individual doctor’s conscience objection while ensuring appropriate staffing for emergency use,” she said.

Justice John Roberts seemed skeptical, asking if that meant a hospital would be out of compliance with EMTALA if they didn’t have at least one pro-abortion doctor staffed in the emergency room, and therefore, lose their Medicare funding. Prelogar answered yes.

Government Overreach

Justice Neal Gorsuch also questioned Prelogar about the precedent this case could potentially present; though Prelogar said this wasn’t applicable, Gorsuch said that this could turn “regulation of medicine into a federal function” by linking federal funding for hospitals to the regulations and standards decided upon by the government.

Justice Samuel Alito seemed to agree. “How can you impose restrictions on what Idaho can criminalize?” he asked, continuing, “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?'”

Prelogar seemed to insinuate that this is exactly what the Biden administration expects.

“What Idaho has done here is directly interfered with the ability of the regulated parties who have taken these funds — federal funds with conditions attached — from being able to comply with the federal law that governs their behavior,” she said. “And this was an essential part of the bargain that the federal government struck with hospitals in substantially investing in their hospital systems.”

Joshua Turner, the lawyer arguing on behalf of the state of Idaho, noted that this is a real possibility, and the outcome of this case will reach much farther than just his own state. “There are 22 states with abortion laws on the books,” Turner said. “This isn’t going to end with Idaho. This question is going to come up in state after state.”

Live Action president and CEO Lila Rose stated in a press release:

Medicine heals. Abortion kills. Abortion is not emergency medicine, and federal law does not require abortion in situations of a medical emergency. The Biden administration argues that abortion is needed to ensure mothers receive medical care for medical conditions and emergencies such as ectopic pregnancy, hemorrhage, and preeclampsia. Abortion is not needed in any of these cases. As the State of Idaho and its attorneys at the Alliance Defending Freedom (ADF) point out in their brief before the Court: 

“Treatments for ectopic and molar pregnancies are not abortions under Idaho law. And conditions like preeclampsia, eclampsia, and HELLP Syndrome are ‘life-threatening situation[s]’ for which Idaho law allows ‘life-saving surgery’ or ‘early delivery.’”

The Biden Administration understands this reality. This case is not about ensuring mothers receive emergency medical care; it is about destroying Idaho’s laws protecting its youngest children from the violence and death of abortion. Contrary to the specious argument that abortion is medicine, abortion is in truth a violation of medicine’s foundational promise to heal. Forcing emergency room doctors to act as abortionists is illegal and unjust. I implore the Supreme Court to follow the law, and allow Idaho’s law to stand.

Oral arguments ended shortly after 12:00pm, at which point the court recessed and will re-convene tomorrow.

The DOJ put a pro-life grandmother in jail for protesting the killing of preborn children. Please take 30-seconds to TELL CONGRESS: STOP THE DOJ FROM TARGETING PRO-LIFE AMERICANS.