The Supreme Court justices voiced doubt Wednesday about a strict Idaho law that would make it a crime for doctors to perform an abortion even for a woman who arrives at a hospital suffering from a serious, but not life-threatening, medical emergency.
Solicitor Gen. Elizabeth B. Prelogar, representing the Biden administration, said these cases are rare and tragic. They are not elective abortions, she said, but pregnancies that have turned into medical emergencies.
Prelogar urged the high court to rule that federal emergency care law applies nationwide and sometimes requires hospitals and their doctors to perform an abortion — regardless of any state restrictions on the procedure — if a pregnant patient’s health or life is at risk.
The justices sounded closely split, but her argument appeared to gain traction with some conservatives.
Justices Amy Coney Barrett questioned whether Idaho would use its laws to prosecute doctors who perform emergency room abortions. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also voiced doubt about the state’s argument.
Would the doctors be prosecuted?, Barrett asked a state attorney. He said doctors who act in good faith would be not be in danger, but Barrett did not sound persuaded. “What if the prosecutor thought differently?,” she asked.
Justice Elegan Kagan said the law has resulted in six pregnant women being airlifted to neighboring states to obtain an abortion.
Justices Sonia Sotomayor and Ketanji Brown Jackson were also sharply skeptical of Idaho’s argument.
The Biden administration’s attorney assured the conservative justices that federal law includes “conscience protections” for doctors and hospitals that are morally opposed to abortion.
The clash over emergency rooms is the first direct challenge to a state’s abortion law to come before the high court since the justices overturned Roe vs. Wade by a 5-4 vote in 2022.
The court’s conservatives said then that states and their lawmakers were free to restrict or regulate abortion.
Idaho’s lawmakers voted to forbid abortions except when it is “necessary” to prevent the patient’s death. In court, their lawyers argued the authority to regulate doctors and the practice of medicine rests with the state.
But the Biden administration sued Idaho and said it was violating the federal Emergency Medical Treatment and Labor Act (EMTALA) that Congress adopted in 1986. It requires hospitals receiving federal funds to provide “necessary stabilizing treatment” to patients who face a medical emergency.
“For some pregnant women suffering tragic emergency complications, the only care that can prevent grave harm to their health is termination of the pregnancy,” the administration’s attorney said. In such situations, delay is dangerous, she added.
The case of Moyle vs. United States poses a clash between the federal law that requires hospitals to provide emergency care and the state’s authority to regulate doctors and the practice of medicine.
Regardless of how the court rules in the Idaho case, the outcome should have no direct impact in California or other states where abortion remains legal.
Joshua Turner, Idaho’s attorney, said 22 states now prohibit most abortions, and the court’s ruling could apply to all of them.
But Prelogar said Idaho is among only six states which make no exceptions for protecting the health of a pregnant patient.
Doctors in Idaho contend the law endangers patients.
In medical emergencies, “delay put the patient’s life and health at risk. But the lack of clarity in the law is creating fear in our physicians,” said Dr. Jim Souza, chief physician executive for St. Luke’s Health System in Boise.
He said doctors in emergency rooms often see pregnant women whose water has broken, who have a severe infection or are bleeding badly. An abortion may be called for in such a situation, but doctors know they could be subject to criminal prosecution if they act too soon, he said.
“Doctors are leaving the state because of the fear surrounding this law,” he said in an interview.
