In Dobbs v. Jackson Women’s Health, the Supreme Court famously declared that it was returning the abortion question to the voters. The people could decide whether or not abortion was to be prohibited in their state.
So, when a federal statute required that hospital emergency rooms offer abortions to women who face imminent medical disaster if they continue their pregnancy, the justices who voted to overrule Roe v. Wade unhesitatingly enforced that statute’s plain language, relieved that the people’s elected representatives had taken this fraught issue off their hands.
Oh wait. That’s not what happened. The Supreme Court is so hostile to abortions that, to prevent them, it will defy the national legislature and harm women.
Pregnant women sometimes face medical emergencies that put them at risk of serious harm — but not death — if the pregnancy is not terminated. Uterine hemorrhaging can require hysterectomy or produce kidney failure requiring lifelong dialysis. Preeclampsia can produce seizures, blindness or hypoxic brain injury. Rupture of the amniotic sac can lead to sepsis or organ failure. When these happen early in pregnancy, the fetus can’t survive, but these consequences can be prevented by early abortion. (If they happen after viability, abortion isn’t relevant, because the standard of care is to deliver the baby.)
Idaho, however, permits abortion only if it is “necessary to prevent the death of the pregnant woman.” So, women in Idaho must endure all this bodily harm while waiting for the doomed fetus to expire. What actually happens is that women are routinely airlifted out of the state, delaying care and imposing huge costs on patients.
The Idaho law collides with the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires emergency rooms that accept Medicare funding (which means almost all of them) to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives with an “emergency medical condition.” The statute says an ER must stabilize anyone who is at risk of “serious impairment to bodily functions,” “serious dysfunction of any bodily organ or part,” or other nonfatal consequences — including the ones I just enumerated. EMTALA also says that it preempts state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.”
Idaho wants to enforce its restriction despite the federal law. The Biden administration sued the state to enforce EMTALA. The Constitution declares that federal law always trumps conflicting state law.
Sounds like an easy case, right? But in January, the Supreme Court bizarrely stayed a lower court injunction that prevented Idaho from enforcing its law in such cases — a strong signal that the court is inclined to uphold the state’s law. And at Wednesday’s oral argument, members of the Republican majority toyed with a number of ways of nullifying the federal law’s clear language.
Justice Samuel Alito, the author of Dobbs, noted that another provision of EMTALA requires care for a pregnant woman’s “unborn child.” He somehow thought that a law using those words couldn’t possibly ever require abortions, even in cases where the fetus has no chance of surviving.
Justices Thomas, Alito, Gorsuch and Barrett tried a second argument, that it would be unconstitutional for federal funding laws to preempt state law. But that would disrupt such a huge range of federal statutes that this path is likely untenable. Justice Kavanaugh suggested that Idaho has modified its abortion ban to eliminate the conflict. But Idaho’s counsel couldn’t explain how abortions could be permitted in cases where women face permanent, non-life-threatening injuries such as brain damage or loss of fertility. Once more, the plain language of the Idaho statute is a problem.
The judges’ contortions are particularly ironic after all the verbiage in Dobbs that piously recited the importance of democratic decisionmaking. Before Roe, “each State was permitted to address this issue in accordance with the views of its citizens.” There had been a movement toward liberalization, “but Roe abruptly ended that political process.” It “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”
Kavanaugh, concurring, likewise wrote: “The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress — like the numerous other difficult questions of American social and economic policy that the Constitution does not address.”
With respect to women facing pregnancy-related medical emergencies, the elected representatives of the people have already spoken. Congress mandates that women must not suffer permanent bodily damage because they are forced to prolong their doomed pregnancies. The court is literally trying not to hear that.
These distortions of the law are particularly weird because of what is not at stake. Many in the anti-abortion movement were surprised and chagrined when their victory in Dobbs led to the denial of necessary medical care for pregnant women. Yet that denial is what Idaho is fighting for. No fetuses will die because of the federal regulation. It only requires hospitals to quickly end pregnancies in cases where the fetus is certain to die anyway, and where delay is dangerous.
Why would anyone want to interfere with that — unless they were so triggered by the idea of abortion that even thinking about it shuts down their ability to reason?
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him @AndrewKoppelman.
