Freethought NOW!

Supreme Court’s EMTALA decision manufactures calm before an inevitable storm

Print Friendly, PDF & Email
c4b9ed6b 5cc6 24aa 9ec5 c9ac02801f90 Supreme Court’s EMTALA decision manufactures calm before an inevitable storm
Abortion rights and bodily autonomy were once again before the Supreme Court this past term. In a case concerning abortions in emergency medical situations, America’s highest court stood poised to deliver another shattering blow to reproductive rights. Instead, the court punted the issue, taking the coward’s way out of a mess it created.

The Supreme Court of the United States released a decision last week allowing Idaho hospitals to resume performing necessary abortions in emergency situations under the federal Emergency Medical Treatment and Labor Act (EMTALA), even when abortions are banned under Idaho law. The decision allows a lower court’s order enjoining Idaho from enforcing its abortion ban in this context to go back into effect while the Biden administration’s lawsuit against Idaho continues. This, on its face, sounds reassuring. However, the ruling should not be taken at face value.

The court did not decide the merits of the two consolidated cases at issue, Moyle v. United States and Idaho v. United States. Instead, a divided Supreme Court voted 6 to 3 to lift its own stay of the trial court’s order  and return this case to the lower federal courts, allowing the case to take the normal route before it inevitably works its way back up to the U.S. Supreme Court.

In her concurrence, joined by Justice Sonia Sotomayor, and partially joined by Justice Ketanji Brown Jackson, Justice Elena Kagan made clear that she doesn’t buy Idaho’s argument that it may ignore EMTALA where abortion is concerned: “EMTALA unambiguously requires that a Medicare-funded hospital provide whatever medical treatment is necessary to stabilize a health emergency — and an abortion, in rare situations, is such a treatment.”

Jackson concurred with the majority’s decision to lift its stay but dissented from the decision to kick the case down the road rather than reach the merits. Jackson’s concurrence/dissent underscored the on-the-ground reality of patients and doctors in Idaho: “As a practical matter, this court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arranged for their patients to be airlifted out of Idaho . . . This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme.”

The three archconservatives on the court, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, dissented. Instead, they held, bafflingly, that EMTALA, a federal statute, does not preempt state law and thus does not require a state to permit abortions in emergency medical situations where abortion is necessary to prevent grave harm or death to the pregnant patient.

It’s unclear what inspired the Supreme Court to take a step back from the ledge the conservative majority seemed so prepared to jump off at oral arguments just a few months ago. Indeed, one is left to wonder whether the court read the room and decided issuing a second devastating blow to reproductive rights and bodily autonomy isn’t such a good idea mere months before the presidential elections.

While the court’s decision isn’t as terrible as we feared it might be, this ruling is hardly a win for the pro-choice movement. At best, the court tacitly admitted that it was hasty in interfering with the lower court’s order and bypassing the court of appeals. More likely, the Supreme Court is simply postponing the inevitable, waiting for another day (and a nonelection year), to decide whether states can flout federal law when it comes to abortion—even when it means Americans will die. When the court does eventually reach the merits, the decision will have far-reaching implications, impacting the life, health and safety of pregnant people across the United States.

Idaho’s current abortion ban prevents almost all abortions except those that are necessary to prevent the death of a pregnant woman. Post-Dobbs, the Biden administration sued Idaho to enforce EMTALA, stating that Idaho’s near-total abortion ban conflicted with EMTALA’s mandate that hospitals provide stabilizing care in emergency situations, even if that stabilizing care requires an abortion.

Put more bluntly, the core question that the Supreme Court side-stepped is whether states can force doctors to allow patients to experience grave harm — and, potentially, even to die — rather than perform a medically necessary abortion.

Congress enacted EMTALA in 1986 in order to ensure that all Americans have access to life-saving emergency medical care regardless of their ability to pay. Under EMTALA, if a patient arrives at an emergency room and is determined to have an emergency medical condition, a hospital participating in Medicare must provide the patient with stabilizing medical care within the hospital’s capacity. If a hospital can’t provide the necessary care, it must transfer the patient to the nearest hospital that can. Of course, EMTALA was enacted when Roe v. Wade was the law of the land, and the Congress that enacted it did so under the assumption that abortion access would not be plunged into chaos mere decades later.

The text of EMTALA is crystal clear: Hospitals must provide the necessary care to stabilize a patient suffering from a medical emergency, or transfer the patient to a hospital that can perform the necessary care if the transferring hospital truly cannot provide it. The law does not carve out an exception for abortion. Yet, that is what at least three members of the Supreme Court want to do. If they have their way, women across our country will pay the price with their lives.

Currently, 14 states have enacted laws banning abortions except in extremely limited circumstances, like saving a patient’s life. Some states, such as Louisiana, do not even include exceptions for rape or incest. Exceptions like these put doctors in the position of having to judge whether a patient will certainly die if they don’t receive an abortion. If a doctor judges incorrectly, or rather a local prosecutor decides a doctor judged incorrectly and provided an abortion that wasn’t technically necessary to save the patient’s life, that doctor could face prosecution — possibly leading to steep fines and prison time (even up to a lifetime in Texas).

The Freedom From Religion Foundation signed onto an amicus brief by the National Women’s Law Center that underscored the untenable uncertainty that draconian abortion laws in several states are causing. The brief urged the Supreme Court to uphold the federal government’s interpretation of EMTALA and reject Idaho’s dangerous and legally dubious argument that states may turn a blind eye to federal law when it comes to abortion, even when Americans’ lives and well-being are at stake.The brief noted: “In the wake of Dobbs, health care professionals in abortion-ban states fear that providing medically necessary emergency obstetric care (including care required by EMTALA) may invite criminal prosecution, among other severe consequences,” and that “fear is driving providers out of already underserved areas.”

Further, we must not lose sight of the fact that opposition to abortion is almost entirely religiously motivated. Abortion bans are often justified by the belief that life begins at conception — an extreme religious ideology that is not even shared by many religious Americans, including plenty of Christians.

If the Supreme Court eventually chooses to carve out an unnecessary exemption from EMTALA for abortion ban states, that carve-out will be unmoored from the statute’s text and constitutional precedent. However, such a decision is one of the next logical steps in the much larger plan to enshrine Christian nationalism as the law of the land across our country. Roe was just the first domino to fall in a far longer sequence that Christian nationalists have been engineering for decades. Any hopes that the court’s conservative supermajority would truly stop after overturning Roe and leave abortion “to the states” were naive.

In its briefing to the court, the federal government cautioned that if Idaho’s argument won, that would mean “a pregnant woman could arrive at a hospital urgently needing essential care and, instead of offering ‘such treatment as may be required to stabilize the medical condition,’ the hospital would have to let her die.”

The Supreme Court chose to step back from the ledge this time, waiting for another day to decide whether or not the hospital will, in fact, have to let her die. We cannot allow this ruling to lull us into a false sense of security. Instead, this case should stand as a stark reminder that we cannot rely on the Supreme Court to save us. We must save ourselves.

Please share this article:

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.