The Supreme Court’s likely to make it more dangerous to be pregnant in a red state

But it’s not yet clear they’ve settled on a rationale for doing so.

A federal law requires most US hospitals to provide an abortion to patients experiencing a medical emergency if an abortion is the proper medical treatment for that emergency. This law is unambiguous, and it applies even in red states with strict abortion bans that prohibit the procedure even when necessary to save a patient’s life or protect their health.

Nevertheless, the Supreme Court spent Wednesday morning discussing whether to write a new exception into this federal law, which would permit states to ban abortions even when a patient will die if they do not receive one.

Broadly speaking, the Court seemed to divide into three camps during Wednesday’s argument in Moyle v. United States. The Court’s three Democrats, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, all argued — quite forcefully at times — that the Emergency Medical Treatment and Labor Act (EMTALA) means what it says and thus nearly all hospitals must provide emergency abortions.

Meanwhile, the Court’s right flank — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — left no doubt that they will do whatever it takes to permit states to ban medically necessary abortions.

That left three of the Court’s Republicans, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, in the middle. Kavanaugh and Barrett both asked questions that very much suggest they want states to be able to ban medically necessary abortions. But they also appeared to recognize, at times, that the arguments supporting such an outcome are far from airtight.

Realistically, it is highly unlikely that EMTALA will survive the Court’s Moyle decision intact. The Court already voted last January to temporarily allow the state of Idaho to enforce its strict abortion ban, despite EMTALA, while this case was pending before the justices. And Kavanaugh and Barrett have both taken extraordinary liberties with the law in the past when necessary to achieve an anti-abortion outcome.

Still, federal law is crystal clear that states cannot outright ban medically necessary abortions. So there is a chance that two of the Court’s Republicans will reluctantly conclude that they are bound by the law’s clear text.

Moyle should be an exceptionally easy case

EMTALA requires hospital emergency rooms that accept Medicare funding to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” Though the law does not specifically mention abortion, it is written in capacious terms. So, if a patient has an “emergency medical condition” and the proper treatment to stabilize that condition is an abortion, the hospital must provide an abortion.

Though the law only applies to Medicare-funded hospitals, that’s nearly all hospitals because Medicare provides health coverage to Americans over the age of 65.

EMTALA conflicts with an Idaho law that bans abortions in nearly all circumstances. While Idaho permits an abortion when “necessary to prevent the death of the pregnant woman,” it does not permit such an abortion if the patient faces a catastrophic health consequence other than death, such as the loss of her uterus.

EMTALA requires emergency rooms to stabilize any patient who is at risk of “serious impairment to bodily functions,” “serious dysfunction of any bodily organ or part,” or other nonfatal consequences that are defined as medical emergencies by EMTALA. So the federal law applies in many cases where the patient is not at risk of death.

Additionally, EMTALA includes a provision saying that state and local laws must give way to the federal requirement to stabilize patients “to the extent that the [state law] directly conflicts with a requirement of this section.”

So, if the Supreme Court were concerned solely with the text of EMTALA, they would hand down a unanimous decision holding that Idaho’s law is preempted by EMTALA, at least to the extent that Idaho prohibits medically necessary abortions. EMTALA does not purport to override most restrictions on abortion, but its explicit text requires hospitals to perform an abortion when necessary to stabilize a patient’s emergency medical condition.

So how did the Republican justices propose getting around EMTALA’s clear text?

Members of the Court’s Republican majority proposed three possible ways they could try to justify a decision permitting Idaho to ban many medically necessary abortions.

The weakest of these three arguments was proposed by Justice Samuel Alito, author of the Court’s 2022 decision eliminating the constitutional right to an abortion. Alito pointed to a provision of EMTALA that requires hospitals to also offer stabilizing care to a pregnant patient’s “unborn child” if a medical emergency threatens the fetus’s life, though Alito did not really make a legal argument. He just expressed indignation at the very idea that a statute that uses the words “unborn child” could possibly require abortions in any circumstances.

“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” Alito asked US Solicitor General Elizabeth Prelogar.

As Prelogar told Alito, EMTALA reconciles the dual obligations it imposes on hospitals to treat both a pregnant patient and the patient’s fetus by only requiring the hospital to “offer” stabilizing care for both patients — so, in the tragic case where only the mother or the fetus could be saved, the hospital must offer both treatments and honor the mother’s choice.

A second argument for limiting EMTALA, which was at times floated by Thomas, Alito, Gorsuch, and Barrett, is that reading the statute according to its actual text would raise a constitutional problem.

EMTALA imposes an obligation on hospitals that accept Medicare funds, and the Supreme Court has long held that Congress may impose requirements on parties that voluntarily accept federal funding. The constitutional argument is that Congress could not use federal funding provided to a private hospital to neutralize a state ban on abortion because the state of Idaho must also consent to having its law altered in this way.

There is some case law that provides theoretical support for this argument, but the bulk of the Court’s case law already establishes that a federal grant program that provides money to private parties may displace state law. Thus, for example, in Coventry Health Care v. Nevils (2017), the Court held that the federal government’s decision to offer its own employees health plans that violate Missouri law preempts that state law. And in Bennett v. Arkansas (1988), the Court held that federal Social Security law overrides an Arkansas law that allowed the state to seize an incarcerated person’s Social Security benefits.

The Court could conceivably repudiate precedents like Coventry and Bennett, but that would have unpredictable consequences for all sorts of federal programs. Federal spending programs like Medicare, Social Security, and Medicaid are riddled with provisions that might conflict with one state law or another. And if the Supreme Court declares that these state law provisions overcome federal Medicare, Social Security, or Medicaid law, that is likely to disrupt those and other programs in erratic ways.

That leaves one other way to achieve an anti-abortion outcome in the Moyle case, whose biggest proponent was Kavanaugh.

Kavanaugh noted that Idaho has weakened its abortion ban since this litigation began and that it’s done so in ways that theoretically make it easier for doctors to claim that they needed to perform an abortion to protect a patient’s life. In light of these changes, he suggested that maybe “there shouldn’t be an injunction” against Idaho because it’s not clear that the state’s law still conflicts with EMTALA.

But this argument is hard to square with the facts on the ground in Idaho. As Justice Kagan pointed out close to the end of the argument, hospitals in Idaho are still so uncertain when they can perform an abortion that many of them are flying patients to other states. She noted that just one Idaho hospital had to do so six times so that those patients could receive an emergency abortion in a location where everyone could be sure it was legal.

Idaho’s lawyer, moreover, struggled so hard to explain when Idaho’s law permits a doctor to perform a medically necessary abortion that Barrett accused him of “hedging.” Kavanaugh’s argument, in other words, would require the justices to ignore what’s happening in Idaho and to pretend that Idaho is somehow complying with EMTALA, despite the fact that Idaho’s own lawyer could not explain how its abortion ban works.

So the ultimate question looming over the Moyle case is whether two of the Court’s Republican appointees will be so troubled by the weakness of the anti-abortion arguments in this case, and so embarrassed by the fact that there’s really only one plausible way to read EMTALA, that they will begrudgingly apply the law as written.

That’s not the most likely outcome in this case. But, at the very least, the Court’s Republican majority does not appear to have settled on a way to explain a decision creating an abortion exception to the EMTALA statute.