The law is ‘clear,’ Idaho AG Labrador says. Supreme Court hears case on abortion ban

Outside the front steps of the U.S. Supreme Court on Wednesday morning, anti-abortion groups and abortion rights advocates battled to make their stances known, each wielding signs, stickers and blaring PA systems.

Inside the court’s cool marble walls, the tension over abortion access — specifically whether Idaho can enforce its abortion ban when medical emergencies threaten pregnant patients’ health — pitted Idaho against the U.S. Department of Justice.

Attorneys for each side argued in front of the nine U.S Supreme Court justices Wednesday morning. At times, the hearing seemed tense as the court’s more liberal justices pounced on Joshua Turner, Idaho’s chief of constitutional litigation and policy. In turn, the conservative justices raised substantial questions about U.S. Solicitor General Elizabeth Prelogar’s argument.

The women on the bench seemed especially skeptical of Idaho’s argument. The first half-hour of questioning for Turner came from the four female justices, including conservative Justice Amy Coney Barrett, who questioned the point of bringing the case to the court if, as Turner argued, there is no discord between state and federal law.

But the court is heavily conservative, and that split was apparent as Prelogar stood before the justices. She faced scrutiny from Barrett as well, along with the five right-leaning men on the court. If the justices rule in line with their previous stances on abortion, Idaho could see a majority in its favor.

The case dates back to 2022, when the federal government sued the state over its abortion ban, which went into effect when the Supreme Court overturned Roe v. Wade. While Idaho’s abortion law allows an exception to prevent a pregnant patient’s death, it does not carve out an option for abortion as a means of preserving patients’ health in a medical emergency. Doctors and medical associations told the Idaho Statesman and the court that abortion is a recommended stabilizing procedure for several emergency conditions.

The court’s decision will have broad impacts outside Idaho. At least six other states have similar laws, and others are in the process of implementing more strict abortion regulations. Some justices implied that the ruling could impact other instances when federal and state laws clash, broadening the scope of the case even further.

Does Idaho abortion law conflict with EMTALA?

At the core of the disagreements between the federal government and Idaho is whether the Emergency Medical Treatment and Labor Act, or EMTALA, is in conflict with Idaho abortion law. The Department of Justice — and numerous medical institutions — say there is a conflict; Idaho says there isn’t.

In briefs submitted to the court ahead of the oral arguments, Idaho attorneys said EMTALA neither requires hospitals to perform procedures that violate state law, nor does it expressly mention abortion as a stabilizing treatment. Idaho officials also said attempting to enforce EMTALA over state law opens the door to unconstitutional federal intervention.

In its argument, the federal government noted that EMTALA does not mandate any specific stabilizing procedures. Instead, it leaves medical decisions up to the providers — many of whom told the Statesman they regularly see cases for which abortion is an appropriate procedure to stabilize an emergency patient and protect their health.

Turner’s opening statement asserted that EMTALA does not require doctors to break state laws to provide stabilizing emergency medical care. After just a few minutes of laying out his argument, Turner stood for questions from the justices.

Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan intensely interrogated Turner’s case, at times cutting his responses short to ask further questions.

The justices asked Turner for clarification on Idaho’s understanding of EMTALA. Turner told Brown that, while he agrees EMTALA imposes a requirement for hospitals to stabilize patients, “the question is the content of the stabilizing requirement.”

Turner also quibbled over some of the language of EMTALA, which requires doctors to stabilize patients with “treatment or accommodations that are available or medically indicated.” Turner said abortion is not a treatment available to doctors holding an Idaho medical license.

Sotomayor swiftly argued against that point. She raised a hypothetical situation in which a state might attempt to limit treatment for diabetes to exclude the usual standard of care.

“No state licensing law would allow a state to say, ‘Don’t treat diabetics with insulin, treat them with pills,’ ” Sotomayor said.

Turner told the court that Idaho law exists alongside EMTALA. He said in all hypothetical situations of obstetrical emergency presented by the federal government in the case, Idaho law would allow doctors to perform an abortion if they do so in good faith that the procedure will save the patient’s life.

“Nobody’s arguing that these cases don’t raise tough medical questions,” Turner said. “Idaho does not require that doctors wait until (patients) are on the verge of death.”

Barrett, one of the court’s more conservative justices, called out Turner for creating a confusing argument after he told the court exemptions are “case by case.”

“You’re hedging,” Barrett said.

Later she asked Turner where Idaho’s conflict is with EMTALA if the state claims doctors can provide abortions in the hypothetical cases the federal government laid out.

“If there’s no instance where EMTALA and Idaho law clash, then why are you here?” Barrett asked.

Justices question impact of ruling for EMTALA

Prelogar, who grew up in Idaho, argued the federal government’s case. She told the justices that EMTALA is “simple but profound.”

“This case is about how that guarantee (of emergency stabilizing care) applies to women who are pregnant,” Prelogar said.

She, too, faced a rigorous line of questioning.

Justice Clarence Thomas, a conservative voice on the court, opened questioning by raising the issue of whether a spending clause — as he referred to EMTALA — can override states’ criminal laws, setting up the main critique the justices had for the solicitor general.

EMTALA is tied to federal Medicare funding. Hospitals that accept such funding are required to comply with EMTALA.

Thomas told Prelogar he found it “odd” that the regulated body in question — hospitals — was not party to the case. Justice Samuel Alito, the court’s most staunch conservative, doubled down on Thomas’ point.

“How can you impose duties on what Idaho can and cannot criminalize?” Alito asked Prelogar.

Alito also raised the question of mental health and whether a woman experiencing a mental health crisis can receive abortion as a stabilizing treatment. Prelogar said the federal government’s stance is that termination of pregnancy does not constitute treatment for a mental health emergency.

The justices questioned Prelogar over several other aspects of EMTALA and its overlap with abortion. Chief Justice John Roberts asked Prelogar whether the federal government allows exceptions to EMTALA when a physician has a conflict of conscience with a treatment.

“You cannot force a doctor to step over a conscience objection,” Prelogar said. But she noted that, if a hospital fails to employ any doctors who will perform an abortion, the hospital could face penalties under EMTALA for not offering appropriate medical care.

When will court rule on Idaho abortion case?

The justices are expected to issue a ruling on the case in June or July. The court leans conservative, prompting some analysts to predict it will rule in Idaho’s favor.

Idaho Attorney General Raúl Labrador, who attended Wednesday’s case and sat at the front of the courtroom alongside Turner, told reporters after the hearing that he felt confident in Idaho’s argument but was unsure how the court would rule.

“I think it’s really hard to read what the court’s gonna do,” Labrador said. “It’s hard to read the tea leaves.”

He reiterated Turner’s claims that Idaho abortion law exists without conflict with EMTALA and said the Idaho Medical Association has been “trying to confuse people” about when abortion is legal.

“We have been clear on what the law means, and the Idaho Supreme Court was clear about what the law means,” Labrador said.

Idaho stakeholders react to hearing

As Labrador spoke, the rally outside the court continued 50 yards away. Dozens of abortion rights activists, many with the Women’s National Law Center, raised cheers as speakers vowed to continue fighting for abortion access across the nation.

“Whose courts?” one speaker prompted. “Our courts!” the crowd replied.

Just south of the throng of abortion rights protesters, anti-abortion demonstrators played patriotic songs over their speakers. Organized by Stanton Healthcare, they were surrounded by purple signs emblazoned with the message, “Emergency rooms are not abortion clinics.”

Brandi Swindell, founder and CEO of Stanton Healthcare, an anti-abortion pregnancy center based in Meridian, told reporters outside the courthouse that she was encouraged by the conservative justices’ skepticism of Prelogar’s arguments.

She called the federal government’s stance in the case “a slap in the face” to Idaho voters, women and “preborn children.”

“It was an honor to attend these oral arguments and to see firsthand this very, very important discussion that can set a precedent for the entire nation,” Swindell said.

Meanwhile, Boise Mayor Lauren McLean in a statement Wednesday said she stands with health care providers and urged the Supreme Court to rule in favor of EMTALA.

“Nobody should have to travel to another state for medical care they need, McLean said, “and yet that’s what’s happening because we are losing health care providers and emergencies can’t be treated here.”

Idaho Senate and House minority leaders Melissa Wintrow and Ilana Rubel, both Boise Democrats, also made the trip to Washington, D.C., and said they wanted to represent Idaho residents who oppose the abortion law. Wintrow pointed to polling in Idaho that showed most Idaho residents disagreed with the state laws on abortion and wanted fewer restrictions on the procedure.

Rubel told the Statesman she wanted to ensure that Labrador and other Republican supporters of the law weren’t the only voices from Idaho at the courthouse.

“It was very important to to say that there’s another side, and that there are those of us who do believe that women’s health and livelihood matters, and that we’re here fighting for them,” Rubel said.

Wintrow and Rubel said they were glad that the court’s liberal justices pushed back at Turner’s arguments. The legislators refuted Turner and Labrador’s assertions that Idaho law is clear and in compliance with EMTALA.

Rubel said it’s “headspinning” to look at how abortion access in Idaho has changed since 2022.

“Two years ago we had full freedom and autonomy,” she said. “Now we’re fighting over these scraps about whether a woman in a dire health emergency can get necessary medically required stabilizing care.”