The Supreme Court (SCOTUS) is weighing whether federal law preempts Idaho’s near-total abortion ban. The high court’s decision would likely not only impact abortion law in Idaho as it relates to emergency medical care, but in Arizona as well.
SCOTUS heard oral arguments for the case, Moyle v. United States, on Wednesday. (Links to the full audio and transcript of the oral arguments are available here). Idaho’s trigger ban prohibits abortions except in cases to save the mother’s life or to relieve mothers impregnated by rape or incest.
The Biden administration has challenged Idaho’s trigger ban, claiming that the 1986 Emergency Medical Treatment and Labor Act (EMTALA) — which requires Medicare-participating hospitals to offer treatment to stabilize any emergency medical condition — requires Idaho’s Medicare-participating hospitals to perform abortions to stabilize certain mothers’ medical conditions.
The three liberal SCOTUS justices — Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor — argued that EMTALA requires hospitals to stabilize care with an abortion if necessary, before the mother’s life becomes at stake, as Idaho’s law requires.
A number of examples were presented, such as a mother who, unable to receive an abortion as part of stabilizing emergency medical care, delivers a preterm baby and must undergo a hysterectomy, preventing the possibility of future pregnancies.
“If objective medical care requires you to treat women who present the potential of serious medical complications and the abortion is the only thing that can prevent that, you have to do it,” said Sotomayor. “[Whereas] Idaho law says the doctor has to determine not that there’s merely a serious medical condition but that the person will die.”
Sotomayor also claimed that some states were debating abortion bans that would eradicate the life-saving exception.
Idaho Solicitor General Joshua Turner told the justices that Idaho law doesn’t require doctors to wait until a patient is on the verge of death to perform abortions in emergency situations. Turner also disagreed with Justice Elena Kagan’s claim that the EMTALA standard of care not only encompasses the protection of a woman’s life, it encompasses a protection of a woman’s health.
The six conservative SCOTUS justices questioned whether doctors would be prosecuted for exercising good-faith medical judgment to conduct abortions.
“What happens if a dispute arises with respect to whether or not the doctor was within the confines of Idaho law or wasn’t?” asked Chief Justice John Roberts. “Is the doctor subjected to review by a medical authority? Exactly how is that evaluated?”
Turner said that was up to prosecutorial discretion, and that medical judgment was largely subjective, but could be scrutinized using state and federal health regulations, prior court precedent, and medical board perspectives.
“Just like every other area of practice of medicine, state law confines doctor judgment in some ways,” said Turner.
The conservative justices also questioned whether the federal government could circumvent Idaho’s abortion ban by wielding its power on hospitals through EMTALA compliance, in which the state has no say and to which the state never agreed.
The full impact of Moyle also depends on whether the Arizona legislature accepts a recent Democrat-led, Republican-supported repeal of the state’s own trigger ban.
The Arizona House voted in favor of the repeal narrowly on Wednesday. It’s now up to the Senate to decide on the repeal. Should both chambers concur, Governor Katie Hobbs will sign the repeal and Arizona’s other existing abortion law — which restricts abortions after 15 weeks — would go into effect.