By Dave Andrusko
This morning, for the second time in less than a month, the United States Supreme Court justices heard a controversy about abortion.
On March 26, the Court heard oral argument in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. At the heart of the discussion before the justices were (a) whether the Alliance had legal standing to file the lawsuit; and (b) the decisions in 2016 and 2021 made by the FDA that greatly weakened regulations of the abortion drug mifepristone.
Today, in Moyle v. United States, Idaho defended its Defense of Life Act against the Biden administration’s twisted use of the Emergency Medical Treatment and Labor Act, a Reagan-era law that requires emergency rooms to provide or help facilitate life-saving care to those unable to pay, including pregnant women and their unborn children.
EMTALA does not mention abortion but does mention four times the requirement to provide stabilizing care for both a pregnant woman and her “unborn child.”
“The Biden administration invoked the statute known as EMTALA — after the Supreme Court eliminated the nationwide right to abortion in 2022,” The Washington Post reported today.
According to the Post
Conservative justices, who make up the court majority, pushed back on the Biden administration’s interpretation of the statute, and indicated the federal government cannot force private hospitals that receive federal funds to violate a state’s law. Justices Neil M. Gorsuch and Samuel A. Alito Jr. drew attention to the fact that the EMTALA statute does not mention abortion but includes the term “unborn child” when defining what constitutes a patient.
“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?’” Alito asked Solicitor General Elizabeth B. Prelogar. “It seems the plain meaning is that the hospital must try to eliminate any immediate threat to the child.”
The New York Times reported that Idaho’s lawyer, Joshua Turner, told Justice Sonia Sotomayor that
states routinely set their own standards to limit health care, despite the federal law requiring treatment during emergencies.
Sotomayor accused Idaho of complying with federal law for all treatment other than abortion. But Turner said states often set limits on treatment, with Idaho setting conditions on abortion, opioids and marijuana use.
New Jersey provides a limit of a five-day supply of opioids to stabilize chronic pain and in Pennsylvania the limit is seven days and other states have no limits, Turner said.
“Abortion isn’t exceptional,” Turner said. “There are countless examples.”
One of Turner’s major contentions was that if the Supreme Court sides with the Biden administration in this abortion case, it won’t silence questions from 21 other states with protective laws:
“This isn’t going to end with Idaho,” Turner said. “This question is going to come up in state after state after state.”
Turner said states must be allowed to regulate how they provide health care – including abortion – as they license medical personnel and require hospitals to comply with state law.
“The administration’s position ultimately is untethered from any limiting principle,” Turner said. “There’s no way to limit this to abortion.”
Turned argued that states limit the distribution of drugs or other treatments just as they restrict abortions.
“We know nurses can’t perform open-heart surgery,” Turner said. “We know janitors can’t draw blood. It’s not just a plain mandate devoid of state law.”
We’ll cover the case again tomorrow.