Supreme Court hears case about emergency abortion care

In this sketch from court, attorney Josh Turney argues during a Supreme Court hearing on the Biden administration’s challenge to aspects of Idaho’s strict abortion ban on Wednesday, April 24, at the US Supreme Court in Washington, DC.

The Supreme Court heard oral arguments Wednesday on whether Idaho’s abortion ban can be enforced in medical emergencies, putting a spotlight on what has been one of the most politically explosive flashpoints in the aftermath of Roe v. Wade’s demise. 

Here are key takeaways from today’s high-stakes hearing:

US solicitor general tailors her appeal to an abortion-hostile court as “narrow” circumstances of medical emergencies: US Solicitor General Elizabeth Prelogar said that there was a real conflict between Idaho’s law and the federal law, known as the Emergency Medical Treatment and Labor Act (EMTALA), but she painted it as a narrow one. She stressed that, in this case, the administration is not trying to interfere with Idaho’s overall ability to criminalize abortions outside of certain medical emergencies.

Idaho and its defenders argue that the Biden administration is trying to circumvent the Supreme Court’s 2022 ruling that let states prohibit abortion, and to rebut that argument, Prelogar described Idaho has an outlier among states that have banned the procedure.

Prelogar’s argument was met with deep skepticism from several of the court’s conservative justices, but others – including Chief Justice John Roberts and Amy Coney Barrett– asked probing questions of both sides. The court’s liberal wing, meanwhile, all signaled they would coalesce around the Biden administration.

Idaho attorney struggles with questions from female justices about serious pregnancy complications: Idaho’s attorney Joshua Turner was subjected to a brutal and extended line of questioning from the female justices of the court exploring how the state’s abortion ban plays out in medical emergencies – particularly in dire situations where a woman’s health is at risk but her life is not yet in danger.

Justice Sonia Sotomayor asked Turner point blank: “What you are saying is that there is no federal law on the book that prohibits any state from saying, even if a woman will die, you can’t perform an abortion?”

Justice Elena Kagan offered a hypothetical in which a woman was about to lose her reproductive organs due to a pregnancy complication. As Turner danced around the “difficult” and “tough” situation her question as posing, she pushed harder: “That would be a good response if federal law did not take a position on what you characterize as a ‘tough question.’”

Keep reading takeaways from the arguments.

Chief Justice John Roberts and Associate Justice Amy Coney Barrett.

In a Supreme Court hearing on the Biden administration’s challenge to aspects of Idaho’s strict abortion ban, US Solicitor General Elizabeth Prelogar sought to appeal to conservative justices who just two years ago ruled that states should have the ability to prohibit the procedure.

The dispute, stemming from the Justice Department’s marquee response to the high court’s reversal of Roe v. Wade in 2022, turns on whether federal mandates for hospital emergency room care override abortion bans that do not exempt situations where a woman’s health is in danger but her life is not yet threatened.

To prevail, the Biden administration will need the votes of two members of the court’s conservative bloc, and with Justice Brett Kavanaugh signaling sympathies toward Idaho, the case will likely come down to the votes of Chief Justice John Roberts and Amy Coney Barrett. The two justices had tough questions for both sides of the case.

The court’s far-right wing, perhaps in an attempt to keep those two justices on their side, framed the case as a federal overreach into state power. The court’s liberals, meanwhile, focused on the grisly details of medical emergencies faced by pregnant woman that were not covered by the limited life-of-the-woman exemption in Idaho’s ban.

Dr. Caitlin Gustafson, a family medicine physician from rural Idaho, said having access to safe abortions should be a standard of care in order to have a safe health care system.

Speaking to CNN right outside of the Supreme Court, Gustafson said that she has seen Idaho’s health care system “fall apart” since the abortion ban went into effect.

“We have lost a multitude of providers, particularly my OB-GYN colleagues who cannot continue to have themselves in the position of trying to make these decisions in emergencies, where a patient’s heath and life threatened,” she said, noting that if they make the wrong decision at the wrong moment, they may go to jail or lose their license.

Gustafson said that believes the Supreme Court’s decision, based on today’s arguments regarding whether Idaho’s abortion ban can be enforced in medical emergencies, puts safe emergency health care across the board is at risk.

“This isn’t just about abortion, this is about a protection of — a life saving protection we’ve had in place that keeps any person, including our pregnant patients who come to the emergency room safe,” she said.

The federal law is what doctors across the country has “grown up under and it’s what keeps everyone safe” she said. Gustafson also noted that she’s seen a distinct change in the health care system in Idaho since doctors in the state lost this protection and says it is “untenable.”

US Solicitor General Elizabeth Prelogar argued today that Idaho’s abortion law is akin to a ban on epinephrine, which treats severe allergic reactions.

Prelogar noted federal law mandates that if a person has an emergency medical condition and goes to an emergency room, “they have to stabilize you.”

“Congress did not provide a reticulated list of all possible emergency medical conditions and all possible treatments,” she said. “But it was very clear that Congress set a baseline national standard of care to ensure that no matter where you live in this country you can’t be declined service.”

Of Idaho’s abortion law, Prelogar said: “It would be no different if the state had come out and decided to ban epinephrine.”

“I don’t see any way to try to draw lines around to exclude pregnancy complications,” she added.

Supreme Court arguments in the historic abortion case have concluded. 

Now the justices will begin drafting an opinion – or several. That process usually takes a few months. In this case, the court is expected to hand down its ruling by the end of June.

In a tense exchange over how federal protections extend to a fetus, US Solicitor General Elizabeth Prelogar argued that women “deserve” medical treatment whenever it is needed.

Prelogar and Conservative Justice Samuel Alito went head-to-head as part of a line of questioning from the justice over whether, in enacting the federal law EMTALA, lawmakers were aiming to give protections to an “unborn child” — a term that is included in multiple provisions of the law.

Prelogar said the law states there is a duty for doctors to act when a pregnant person is “suffering some kind of emergency and her own health isn’t at risk, but the fetus might die,” like in the case of a prolapse of the umbilical cord into the cervix.

“But to suggest that in doing so,” Prelogar said, “Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization — I think that that is an erroneous reading of this.”

Alito snapped back: “Nobody’s suggesting that a woman is not an individual and she doesn’t deserve stabilization.”

US Solicitor General Elizabeth Prelogar argued that the federal government has an interest to “protect its sovereign interest,” noting that “Idaho has directly interfered with the ability of hospitals to accept” federal funds through its abortion law.

Prelogar said several cases address the issue of proprietary interest, citing a case from the late 1800s in which the US Supreme Court unanimously upheld the federal government’s injunction to stop a labor strike related to US railroads.

Prelogar cited the Supreme Court’s ruling in the case, known as In re Debs, during arguments against Idaho’s abortion law.

Justice Neil Gorsuch reacted: “Debs? You really want to rely on Debs, general? I mean that wasn’t exactly our brightest moment.”

“I do think though that it reflects the history and tradition of this nation in recognizing that it’s entirely appropriate for the United States to seek to protect its interests in this manner,” Prelogar said.

People gather during a protest in support of reproductive rights and emergency abortion care on the day the Supreme Court justices hear oral arguments over the legality of Idaho's Republican-backed, near-total abortion ban in medical-emergency situations, in Washington, DC, on April 24.

Conservative Justice Samuel Alito asked US Solicitor General Elizabeth Prelogar to explain why the federal law in question, the Emergency Medical Treatment and Labor Act (EMTALA), uses the term “unborn child.”

“It’s not an odd phrase when you look at what Congress was doing,” at the time Prelogar said. The law was amended to add the term in 1989.

“There were well publicized cases where women were experiencing conditions their own health and life were not in danger, but the fetus was engraved distress and hospitals weren’t treating them,” Prelogar said.

The term is referenced multiple times in law, including in the definition of a medical emergency scenario where the health of an unborn child is in serious jeopardy, where restricting the transfer of a patient in labor would put the safety of the unborn child at risk. 

The Charlotte Lozier Institute, an anti-abortion think tank, said in a friend-of-the-court brief that that EMTALA “expressly protects the lives of unborn children” and that it requires hospitals to “to follow the two-patient paradigm to protect both the mother and her unborn child.”   

“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.”  

If a pregnant woman in Idaho comes to an emergency room facing a grave threat to health but isn’t facing death, doctors have to delay her care until she deteriorates “or they’re airlifting her out of the state so she can get the emergency care that she needs,” US Solicitor General Elizabeth Prelogar said in her argument.

There has been an uptick in the number of patients transferred for life-saving abortions after Idaho banned the procedure, according to Dr. Jim Souza, the chief physician executive for Boise-based St. Luke’s Health System.

St. Luke’s, Idaho’s largest hospital system, wrote in a friend-of-the-court brief that the legal uncertainty created by the state’s abortion ban means patients with emergency pregnancy complications are more likely to be transferred out of state for care unless they’re at “imminent risk of death.”

Souza said that in 2023, during an injunction on enforcement of the law as it pertained to the Emergency Medical Treatment and Labor Act (EMTALA), only one patient in the emergency department was recommended to be transferred out of the state.

Dr. Julie Lyons, a family medicine physician with St. Luke’s Health System, told CNN in February that she counsels patients on their first prenatal visit to “buy life-flight insurance,” in case they face a “rare situation that a complication does happen.”

Some doctors have also left Idaho as a result of the law, Souza said, creating a “destabilizing effect” on the hospital system.

United States Supreme Court Associate Justices Neil Gorsuch and Amy Coney Barrett.

Several of the justices are asking about Congress’ ability to impose requirements on hospitals in exchange for providing funding.

In this case, one of the issues at play is whether the government can require hospitals that receive federal Medicare funding to perform abortions in emergency situations.

Conservative Justice Amy Coney Barrett asked how far the government’s argument could be carried: Could a future administration withhold Medicare funding from hospitals, for instance, if they performed gender transition surgeries?

Conservative Justice Neil Gorsuch picked up on the theme with a series of similar, skeptical questions.

“Could the federal government essentially regulate the practice of medicine in the state through the spending clause?” he asked US Solicitor General Elizabeth Prelogar. “It could ban abortion across the nation through the use of it spending clause authority?”

Prelogar responded, essentially, yes.

“Congress,” she said, “does have broad authority.”

Chief Justice John Roberts asked whether individual doctors could have a “conscious objection,” or could refuse to provide an abortion because of their personal religious convictions.

If doctors morally object to performing an abortion, Roberts asked, then how would hospitals still meet the their requirement under the Emergency Medical Treatment and Labor Act (EMTALA) to provide care.

Prelogar said yes, an individual doctor could consciously object to terminating a pregnancy.

However, if the hospital itself is subject to EMTALA, then “the hospital should have plans in place to honor the individual doctor’s conscience objection while ensuring appropriate staffing for emergency.”

Justice Amy Coney Barrett, who will be a key vote to decide the case, earlier asked a similar question, showing how concerned the two conservatives are about that issue.

In this September 2021 photo, Elizabeth Prelogar is sworn-in as she appears before a Senate Committee on the Judiciary for her nomination hearing to be Solicitor General of the United States, in the Dirksen Senate Office Building in Washington, DC.

US Solicitor General Elizabeth Prelogar said in her opening arguments that federal law guarantees pregnant women in medical crisis be able to get stabilizing care.

“[The Emergency Medical Treatment and Labor Act]’s promise is simple but profound,” Prelogar said. “No one who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care.”

Prelogar continued: “This case is about how that guarantee applies to pregnant women in medical crisis.”

“But Idaho makes termination a felony punishable by years of imprisonment unless it’s necessary to prevent the woman’s death,” she added.

Remember: The US Department of Justice brought a lawsuit against Idaho claiming the federal law overrides the state’s abortion ban in situations where a woman’s pregnancy is risking serious harms to her health that are not yet life threatening.

United States Supreme Court Associate Justice Samuel Alito poses for an official portrait at the East Conference Room of the Supreme Court building in 2022 in Washington, DC. 

Though the issue was not explored deeply before the arguments, the question has long simmered in the background of the emergency abortion case: Can a woman who is pregnant receive an abortion at a hospital under the federal law by claiming a mental health illness, such as severe depression?

Conservatives are concerned about that possibility because they believe it would lead to more abortions.

US Solicitor General Elizabeth Prelogar, arguing for the Biden administration, said that the federal law itself would require hospitals to stabilize a pregnant patient with “grave mental health emergencies” but said that it wouldn’t lead to abortions.

“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” any mental health emergencies.

Anti-abortion activists and abortion rights advocates gathered outside the Supreme Court on Wednesday ahead of one of the most significant abortion cases since the high court overturned Roe v. Wade two years ago.

See photos from the scene:

Abortion rights advocates and anti-abortion opponents clash outside the US Supreme Court on April 24 in Washington, DC. 

Protesters raise placards in support of abortion rights at the US Supreme Court.

People participate in a "Die-In" to support "reproductive rights and emergency abortion care" outside the US Supreme Court.

The US Capitol Police officer stands guard in front of the US Supreme Court on Wednessday.

A demonstrator with the word "LIFE" written on tape covering his mouth stands outside the US Supreme Court on Wednesday.

Justice Samuel Alito questioned why the Justice Department believes it can impose restrictions on Idaho state law as it relates to hospital decisions.

US Solicitor General Elizabeth Prelogar said that because hospitals are accepting federal money for programs like Medicare, they have to abide by the federal rules.

In response, Alito asked how the argument squared with Congress’ Spending Clause power.

“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,’” he said.

“But,” he continued, “How does the Congress’ ability to do that, authorize it to impose duties on another party that has not agreed to accept this money?”

With the first part of Idaho’s arguments wrapping it up, it appears that Justices John Roberts and Amy Coney Barrett, who are conservative, will be key votes in the case.

Justice Brett Kavanaugh, who sometimes sides with the liberals, has signaled skepticism of the Biden administration’s arguments about the reach of the federal emergency care law.

Barrett, however, had several tough questions for Idaho attorney Joshua Turner and appeared to have some difficulties with how he described Idaho’s ban would apply in medical abortions.

Roberts had fewer questions during Turner’s presentation, but zeroed in on how the life-of-the-mother exemption in Idaho’s law operates and who decides whether a doctor had a “good faith” reason to perform abortion under it.

Now it’s the Biden administration’s turn to respond as US Solicitor General Elizabeth Prelogar takes the well of the ornate courtroom and begins her presentation to the justices.  

Just like Idaho’s attorney, Prelogar will speak for about two minutes uninterrupted and will then begin fielding questions in rapid succession. As the Justice Department’s top appellate attorney, Prelogar’s presence underscores the significance of the case for the administration.

Prelogar will argue that federal law supplants the state’s abortion ban when women show up at an emergency room in Idaho with complications from a pregnancy that are not life threatening but that risk the health of the mother.

Justice Brett Kavanaugh, often a critical vote to watch in major Supreme Court arguments, questioned just how much of a conflict exists between the federal law at issue in the case and Idaho’s strict abortion ban.

That question picks up on an argument Idaho has made throughout the case: That there is no conflict between the federal and state laws, because the state law already exempts most emergency situations.

But the Biden administration has countered there is a wide gap between Idaho’s exception — for the life of the pregnant woman – and the requirement of the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, to stabilize patience to ensure the health of the pregnant woman.

Other than mental health, Kavanaugh asked, “is there any other condition identified by the solicitor general where you think Idaho law would not allow a physician” to perform an abortion.

Josh Turner, arguing for Idaho, said he did believed the answer was “no.”

Conservative Justice Neil Gorsuch asked whether the Idaho law allowed for abortions in the case of a pregnant person suffering from a medical condition that may result in death in the future, but where death isn’t necessarily imminent.

“As I read your briefs, you thought Idaho thinks that in cases of molar and ectopic pregnancies, for example, that an abortion is acceptable,” Gorsuch asked.

“Correct,” Idaho attorney Joshua Turner said.

“It doesn’t matter whether it happens tomorrow or next week or a month from now?” Gorsuch asked.

Turner responded, saying that “there is no imminency requirement.”

The all-female, liberal wing of the Supreme Court grilled Idaho attorney Joshua Turner on hypotheticals in which pregnancy complications pose serious health risks to women, forcing the hearing into discussion of the grisly medical emergencies at the heart of the case.

Sotomayor started the line of questioning, asking Turner point-blank whether, under Idaho’s interpretation of the federal emergency care law, states could prohibit abortions even if a woman’s life is at risk.

Justice Ketanji Brown Jackson zeroed in on the key “conflict” in the case: scenarios where an abortion is necessary to stabilize a woman but is not necessary to save her life.

Justice Elena Kagan picked up on the line of inquiry, asking Turner a situation in which a woman could lose her reproductive organs.

As Turner sought to grapple with the “difficult” situations in her question, Sotomayor jumped back in, pushing Turner on a pregnancy complication that put a woman at risk of sepsis or hemorrhaging.

She also asked about a patient experiencing complications who was denied an abortion earlier in her pregnancy. In the scenario, by the time the woman was able to deliver, the baby had died and she had been forced to get a hysterectomy in the meantime.

The extended questioning on the Idaho abortion ban’s role in medical emergencies followed the hearing’s drier start that focused on legal questions about federal preemption of state medical regulations.

Turner’s answers prompted some skeptical questions from Justices Amy Coney Barrett and John Roberts, who could be key swing votes in the case.