The Supreme Court takes on another high-stakes abortion case
This morning’s oral arguments center around whether a law requires certain hospitals provide emergency care, including abortion, to people in a medical crisis.
The Supreme Court this morning will hear oral arguments in two cases to determine whether states can deny pregnant people emergency care.
The cases—Idaho v. United States and Moyle v. United States—are centered around the Emergency Medical Treatment and Active Labor Act, an almost 40-year law known as EMTALA that ensures people can access medical care, even if they do not have insurance or are otherwise unable to pay for it.
While EMTALA applies to various types of emergency care, anti-abortion activists fought to exclude pregnant people from the law’s protections, leading to doctors turning away patients in need of urgent medical attention. Abortion rights advocates fear if the Supreme Court sides with Idaho, it will worsen the crisis caused when the court’s conservative supermajority overturned Roe v. Wade in 2022 and the subsequent statewide bans that have made it unlawful for one in three people of reproductive age to seek abortion care in the US.
“The aftermath of the Supreme Court’s decision to overturn Roe v. Wade has been devastating. We read about it every day through the horrific stories of women either being denied emergency medical care, forced to go to court to get the care that a doctor says she needs to have,” Katie Keith, deputy director of the White House Gender Policy Council, said to Once Upon a Hill in an interview. “And even with all these devastating impacts, we are continuing to see Republican elected officials at both the state and national level propose more state abortion bans, but also continuing to push efforts to ban abortion nationwide.”
How we got here
After Dobbs v. Jackson Women’s Health Organization overturned Roe almost two years ago, the Department of Health and Human Services issued guidance to clarify that EMTALA superseded state abortion bans to provide protections to doctors who perform emergency abortions in prohibited jurisdictions. The guidance also explained that while doctors could still be sued, EMTALA could be used as a defense in state court. HHS warned hospitals that failed to provide abortion care to stabilize a patient could face fines or be removed from Medicare.
Following the 1973 Roe decision, Idaho repealed an abortion ban that had been on its books. But in 2020, around two years before the landmark decision fell, the state enacted a trigger ban that would criminalize abortion once Roe was overturned.
The ban prohibits abortion at all stages of pregnancy and limited rape and incest exceptions to the first trimester. The law also attempted to redefine abortion for specific medical conditions. Providers who violate the state’s abortion restrictions are at risk of civil and criminal penalties.
The Biden administration successfully filed a motion in federal court in 2022 to block Idaho from enforcing its ban in cases where EMTALA applied. The state appealed the ruling, which required Idaho hospitals to provide abortion care to pregnant people in emergency situations, arguing that EMTALA doesn’t require physicians to provide specific medical treatments or require hospitals to perform abortion care.
The Supreme Court agreed in January to hear Idaho’s challenge to the lower court’s ruling.
258 congressional Democrats filed a friend-of-the-court brief last month to ask the Supreme Court to affirm the district court’s decision that under EMTALA, hospitals participating in Medicare must provide emergency stabilizing treatment to patients, including abortion care when necessary.
The lawmakers argued the intent, text and history of the law make clear that covered hospitals must provide abortion care in emergency situations and preempts conflicting state law.
“In this case, respecting the supremacy of federal law is about more than just protecting our system of government,” the members wrote. “It is about protecting people’s lives.”
The EMTALA case is the second related to abortion that the Supreme Court will have heard oral arguments for. in less than a month.
Last month, the court heard oral arguments on whether mifepristone will maintain its FDA approval after a district court judge in Texas banned the drug last year following claims from anti-abortion activists that mifepristone was improperly approved by the FDA in 2000 despite its high efficacy and low mortality rates.
A three-judge panel would later overturn a portion of the Texas court’s ruling while shortening the window mifepristone can be used from the 10th week of pregnancy to the seventh and requires the drug to be administered in the presence of a physician.
One in two pregnant people use mifepristone for abortion or miscarriage care.
Decisions in both cases are expected later this summer.
“Don’t mess with the women of America”
The oral arguments come a day after President Joe Biden traveled to a community college in Tampa, Florida on Tuesday to condemn a six-week abortion ban less than a week before it takes effect. He also attacked former President Donald Trump for nominating the justices that overturned Roe and made restrictive laws like the ones in the Sunshine State possible.
“Donald Trump stripped away the rights and freedoms of women in America,” Biden said while encouraging Floridians to support a ballot measure this November that would enshrine the right to abortion care in the state’s constitution. “And when you do that, we’ll teach Donald Trump a valuable lesson: Don’t mess with the women of America.”
Ahead of the speech, Biden campaign manager Julie Chavez Rodriguez wrote in a campaign memo that many women in the southeast will have to drive for a day or more to reach the closest clinic due to bans in neighboring states, including Georgia and North Carolina.
“Trump is hoping that Americans will somehow forget that he’s responsible for the horror women are facing in this country every single day because of him,” Rodriguez wrote. “It’s a bad bet.”
She also referenced several data points that identified reproductive freedom as a top issue in every swing state,
including the ones mentioned above, including Arizona, Michigan, Nevada and New Hampshire.
“Abortion rights will be on the ballot in every race this November,” Rodriguez wrote. “As they have in every election since Trump overturned Roe, voters will remind Trump and MAGA Republicans they do not want their rights taken away. And in every single key battleground. Trump’s abortion bans will be front and center this November.”
But Trump essentially claimed on Tuesday in an interview on a local Philadelphia radio station that everything was fine.
“On the abortion thing, and it’s a very simple situation that has now been worked out. For 52 years they’ve been trying to get it back to the states,” Trump said. “I was able to get it back to the states. Now all of the states are making their decision. They’re all making their decision. And this is what people have wanted. It’s taken the complexity out of it. It’s very simple. It’s now states.”
Biden campaign spokesperson Ammar Moussa immediately seized on the comments.
“Because of Donald Trump, women are being turned away from emergency rooms and forced to wait until they are at the brink of death before receiving the care they need,” he said in a statement. “Child rape victims have to leave their states to get health care. A law from before women had the right to vote is set to strip women of their basic rights. Donald Trump is proud that he killed Roe and ripped away women’s freedom.”
Harris, the White House’s abortion rights champion
Wisconsin is another general election battleground and following an event on the care economy in La Crosse on Monday, a city in the western part of the state, Vice President Kamala Harris reprised her role as the face of the administration’s reproductive freedom message.
“One of the things I do believe is that the majority of us, as Americans, do have empathy,” she said in her remarks at an organizing event on the issue. “I think most of us don’t intend that other people would suffer, that most of us don’t intend that the government would be making such personal decisions for other people, and that this is a moment where we must stand up for foundational, fundamental values and principles.”
Keith told me Harris has helped galvanize the movement inside the White House and at the grassroots.
“The vice president has been an incredible champion on this issue. I think [she and President Biden] both just really understand what’s at stake here and why this is so important and she has really used her platform and her voice to inspire voters to fight back.”
She’s done so by meeting people where they are, including on college campuses last fall when she discussed fundamental freedoms with young people. She’s currently in the thick of a nationwide tour focused specifically on abortion rights and was the first vice president to visit an abortion clinic as she did recently in Minnesota.
“I think a lot of her focus has been really highlighting the impact of these bans,” Keith said. “Everything I’m saying I think applies to [the president] as well. But the way she has been able to engage and really keep and even more sustained focus on this I think has been incredibly important.”
Biden’s executive bandaids
The White House has stretched the limits of President Biden’s executive authority since the Dobbs decision to clarify for hospitals and doctors their obligations under federal law and to stand with women and providers.
Earlier this week, the Biden administration finalized a new rule to safeguard privacy protections for reproductive health information, including for abortion. Specifically, the rule expands Health Insurance Portability and Accountability Act (HIPAA) protections to people who seek, obtain, or provide abortion and other reproductive health care. The regulations will also prevent providers and insurers from having to turn over information to state officials investigating or prosecuting people providing abortion and offer additional protection for people crossing state lines for care.
“HIPAA already had many protections,” Keith said. “But we’re really focused on bolstering it to do what we can to make sure that doctors feel like they’re not going to have these intrusions into their doctor’s offices so they can give the patients the accurate and comprehensive information that they need and women feel secure about getting the care that they need when it’s lawful reproductive health care—and that’s not just abortion, that’s really the full scope.”
In addition to the new privacy rule. President Biden established the Task Force on Reproductive Health to centralize the administration’s work on the issue. He’s signed executive orders that directed agencies to improve access to birth control and treatments like in vitro fertilization, two facets movement leaders say are in the crosshairs of the anti-abortion right. His Department of Veterans Affairs issued a rule removing an exclusion on abortion counseling and establishing exceptions to the exclusion on abortions within the agency. The Defense Department held the line on a policy that allowed service members and families’ ability to travel for reproductive health care, withstanding a highly publicized monthslong stalemate with Sen. Tommy Tuberville (R-Ala.) who blocked hundreds of military promotions in protest of the policy until internal pressure from Senate Republicans pressured the senator to lift the holds.
But these are policy bandaids that can be ripped off by the next anti-abortion president, including Trump, the presumptive Republican nominee. Administration officials concede that the wounds of Dobbs won’t start to fully heal until enough pro-abortion rights members of Congress restore and expand Roe’s protections.
“From the administration’s perspective, we need Congress to restore these protections that have been lost. We need Congress to pass a law that puts the protections of Roe back in place,” Keith said.” The president on the day of the Dobbs decision made very clear that that was the only way we’re going to restore the right to choose for every woman in every state all across the country.”