Supreme Court updates: Does Idaho abortion ban conflict with federal law?

WASHINGTON ?The Supreme Court on Wednesday heard two vastly different views of the clash between Idaho’s near-total abortion ban and a federal law that the Biden administration says requires hospitals to provide emergency abortions if needed to protect the health of the mother.

“In Idaho, doctors have to shut their eyes to everything except death,” Solicitor General Elizabeth Prelogar told the court.

Joshua Turner, the attorney representing Idaho, said the federal government doesn’t get to decide when abortions are the required standard of care in emergency rooms.

“This isn’t going to end with Idaho,” Turner said. “This question is going to come up in state after state after state.”

The case is the high court’s first chance to weigh in on the state laws restricting abortion that have gone into effect since the court erased the right to an abortion in 2022.

It is an emotional debate, and protestors staged 'die-ins' and 'Fight Fascism' rallies outside the court. Some people were lying down under bloodied blankets.

The Biden administration is challenging Idaho’s ban, arguing doctors must follow the federal law. State officials say the Supreme Court turned the abortion issue over to states to decide.

Keep up with USA TODAY's live updates from inside and outside the courtroom:

Also on the Supreme Court's agenda When it comes to Trump Supreme Court bid for immunity, his test case is Richard Nixon

Supreme Court will face abortion questions from 20 states if justices side with feds: Idaho lawyer

Idaho’s lawyer, Joshua Turner, told the Supreme Court that if the justices side with the federal government in this abortion case, it won’t silence questions from 21 other states with abortion restrictions.

“This isn’t going to end with Idaho,” Turner said. “This question is going to come up in state after state after state.”

Turner said states must be allowed to regulate how they provide health care – including abortion – as they license medical personnel and require hospitals to comply with state law.

“The administration’s position ultimately is untethered from any limiting principle,” Turner said. “There’s no way to limit this to abortion.”

Turned argued that states limit the distribution of drugs or other treatments just as they restrict abortions.

“We know nurses can’t perform open-heart surgery,” Turner said. “We know janitors can’t draw blood. It’s not just a plain mandate devoid of state law.”

--Bart Jansen

A 'national mandate on abortion'?

Gabriella McIntyre, legal counsel at the Alliance Defending Freedom, a conservative law firm representing Idaho in the case, said it was an attempt by the Biden administration to reimpose "a national mandate on abortion."

Asked about the increase in women flying out of the state to access emergency medical care for complications to a pregnancy since Idaho's abortion ban went into place, McIntyre said women should "know that there are other resources available to them in this state."

"A lot of women who get abortions don't think that they have any other option," she said. ''They don't know that other support is available to them."

-- Cybele Mayes-Osterman

Idaho law ‘stacks tragedy upon tragedy’: Prelogar

Solicitor General Elizabeth Prelogar said the federal law was originally adopted to prevent hospitals from dumping patients they didn’t want to treat, but that Idaho’s law discourages doctors from treating women with abortions before they are nearly dead.

In many cases, the pregnancy is lost anyway, such as premature rupture of her membranes in the 17th week of pregnancy, Prelogar said. Idaho is forcing women to wait for lifelong health consequences with no hope of saving their babies, she said.

“As a matter of medical reality, for many of these conditions, it’s not yet putting a woman at the brink of death,” Prelogar said. “It just stacks tragedy upon tragedy.”

Justice Elena Kagan had asked why doctors were so concerned about treating women based on their medical conditions.

“It can’t be the right standard of care to force somebody onto a helicopter,” Kagan said.

--Bart Jansen

Alito presses on interests of unborn child

Justice Samuel Alito had an extended back-and-forth with Solicitor General Elizabeth Prelogar over the references in EMTALA to the unborn child.

“Isn’t that an odd phrase to put in a statue that imposes a mandate to perform abortions,” Alito asked.

Prelogar said Congress added that language to make it clear hospitals must provide care to an unborn child even if the woman’s own health is not at risk.

But in many of the cases, she said, there’s no way to save the child while there are real threats to the mother’s health.

“Idaho would deny women treatment in that circumstance,” she said.

Alito said the federal law doesn’t tell states how to weigh the competing interests of the woman and the unborn baby.

Prelogar said Congress would’ve written the law differently if they wanted to place the interests of the fetus over that of the mother.

“Nobody's suggesting that the woman is not an individual and she doesn’t deserve stabilization,” Alito said.

--Maureen Groppe

Idaho doctors shut their eyes ‘to everything except death’: Prelogar

Solicitor General Elizabeth Prelogar slammed the Idaho law for denying care to women who aren’t about to die, after being lobbed a softball to explain her concerns about the law from Justice Elana Kagan.

“In Idaho, doctors have to shut their eyes to everything except death,” Prelogar said.

Doctors are behaving as if they have prosecutors looking over their shoulders to determine whether an emergency-room abortion was provided only because the woman was near death, Prelogar said. Women suffering ailments that could leave them infertile or on dialysis don’t qualify for abortions that could help them avoid serious complications, she said.

Kagan had asked Prelogar whether Idaho restrictions against abortion aren’t in conflict with the federal requirement to provide emergency room care.

“No, that is gravely mistaken on three levels,” Prelogar said. “It is inconsistent with the actual text of the Idaho statute. It’s inconsistent with medical reality. It’s inconsistent with what’s happening on the ground.”

--Bart Jansen

‘I hate it here’: Protestor uses Taylor Swift for abortion rights message

Annie Wu Henry, 28, came from Philadelphia to join the demonstrations in front of the Supreme Court. Henry brought with her cardboard signs turning Taylor Swift song titles into protest messages.One read “the smallest man who ever lived” above photos of conservative justices, while another had the words “I hate it here,” both phrases tracks from the singer’s newest album.“I work in digital (politics), and I understand the way social media works,” Henry said. “And sometimes to get a message across you need to do it in a little bit different of a way.”A fan of the singer, Henry said she expects people to continue to pay attention to the issue of abortion and cases like today’s.“There are people’s lives that will be impacted by these decisions. People will die, women and people who need just healthcare,” she said. “No matter what happens people will continue to fight and people will continue to organize because the stakes are too high.”— Savannah Kuchar

Roberts raises conscience objections

Chief Justice John Roberts asked whether EMTALA requires doctors opposed to abortion to perform one.

Solicitor General Elizabeth Prelogar said it does not. Doctors can raise a conscience objection under federal law, she said.

Hospitals are, however, required to be appropriately staffed. They must figure out how to provide the required care if some doctors are unwilling to, she said.

If a hospital was continually not doing that, the Department of Health and Human Services would work to bring the facility into compliance. If that fails, the hospital could lose Medicare funding, Prelogar said.

--Maureen Groppe 

‘Lots of tools’ to enforce federal health requirements: Justice Gorsuch

Justice Neil Gorsuch noted that the federal law could be enforced in a dispute over abortion through civil monetary penalties and ultimately the termination of Medicaid benefits, as well as private lawsuits.

“Congress has given you lots of tools,” Gorsuch said.

But Solicitor General Elizabeth Prelogar said the federal law aims to guarantee treatment

“Idaho has directly interfered with the ability of hospitals to accept these federal funds when they stand willing and able to comply with (the federal law’s) mandates and fulfill Congress’s desire here to make sure that no matter where you are in this country, if you have an urgent medical need and you go to an ER, you will be stabilized,” Prelogar said.

--Bart Jansen

Alito asks about mental health exceptions

Justice Samuel Alito pressed Solicitor General Elizabeth Prelogar on whether federal law requires abortions for mental health reasons, not just to protect a woman’s physical health.

Prelogar said abortions would never be required as the standard of care for stabilization for mental health reasons because that wouldn’t do anything to address the underlying brain chemistry issues causing a mental health emergency.

“This is not about mental health generally," she said. “This is about treatment by ER doctors in an emergency room.”

One reason abortion opponents have opposed health exceptions is from concern that such exceptions can be stretched by doctors to perform abortions in any situation by claiming it’s necessary to protect the woman’s mental health.

--Maureen Groppe

Thomas questions why the Justice Department sued Idaho

Justice Clarence Thomas suggested it’s unusual that the Justice Department challenged Idaho’s abortion law.

He asked Solicitor General Elizabeth Prelogar if the government has brought action against a state law on other issues.

After Prelogar gave some examples, Thomas asked why it’s not better for the challenge to come from the party directly affected by the law – which, in this case, would be doctors.

Prelogar said the government’s challenge is appropriate because Idaho’s law prevents doctors from complying with the federal stabilization requirement.

-- Maureen Groppe

Idaho doctors and women in ‘impossible position’: federal solicitor general

Solicitor General Elizabeth Prelogar told the justices that Idaho’s law has severe consequences for doctors the threat of years in prison if they perform emergency room abortions on women suffering severe emergency conditions.

If a woman suffered a ruptured amniotic sac, she faces a risk of infection that could lead to a hysterectomy. If she has severe preeclampsia, it could lead to kidney failure and lifelong dialysis.

But doctors are fearful of treating those conditions with abortion because of potential felony charges under Idaho’s law. One option is to let the woman’s health deteriorate until she is near death. The other is to airlift her out of state for an abortion, which one hospital group said happens every other week.

“The situation on the ground in Idaho is showing the devastating consequences of that gap” between the federal requirement for treatment and state restrictions abortion, Prelogar said. “Today, doctors in Idaho and women in Idaho are in an impossible position.”

--Bart Jansen

`What’s the conflict?’

Several justices tried to drill down into where there are disagreements between state and federal law on when abortion is the standard of care in specific medical emergencies.

“What’s the conflict?” Justice Amy Coney Barrett asked. “Why are you here.”

Idaho contends that every example the Biden administration has given for when an abortion is required under federal law but not under state law are wrong.

“Our reading of course is that there is no conflict,” he said.

But the court can’t determine if there are any conflicts, Turner continued, without first deciding what is required for stabilization under EMTALA. And Idaho argues doctors determine that in part by consider what’s allowed under state law.

--Maureen Groppe

‘Abortion isn’t exceptional’: Idaho lawyer

Idaho’s lawyer, Joshua Turner, told Justice Sonia Sotomayor that states routinely set their own standards to limit health care, despite the federal law requiring treatment during emergencies.

Sotomayor accused Idaho of complying with federal law for all treatment other than abortion. But Turner said states often set limits on treatment, with Idaho setting conditions on abortion, opioids and marijuana use.

New Jersey provides a limit of a five-day supply of opioids to stabilize chronic pain and in Pennsylvania the limit is seven days and other states have no limits, Turner said.

“Abortion isn’t exceptional,” Turner said. “There are countless examples.”

--Bart Jansen

‘Lives on the line’: Abortion advocates say stakes are high in today’s case

“Nothing less than women’s lives and pregnant people’s lives are on the line,” said Elizabeth Schoetz, chief campaigns and advocacy officer at Reproductive Freedom for All.As the outcome of this case could impact pregnant patients’ emergency care access in Idaho and other states, Sinsi Hernández-Cancio, Vice President for Health Justice at National Partnership for Women and Families, said the stakes are “especially high.”“Not dying is a very, very low bar,” Hernández-Cancio said, referring to the limited exception in Idaho’s current abortion law. “We can and must do better than that, and that’s why this case is so important.”The Supreme Court’s decision on EMTALA could also set a “dangerous legal precedent,” said Sabrina Talukder, Director of Women’s Initiative at Center for American Progress.“EMTALA is the bedrock of emergency care in the United States,“ she said, adding that “there needs to be much more attention on this case.”— Savannah Kuchar

Roberts asks who disciplines doctors in a dispute under the state law?

Chief Justice John Roberts asked how a doctor would be judged if a dispute arose about whether he was following the Idaho law. Idaho’s lawyer, Joshua Turner, had said nothing in state law prevents a doctor from complying with the federal law to provide emergency treatment, but that the trial standard would be subjective.

“What happens if a dispute arises with whether or not the doctor was within the confines of Idaho law?” Roberts asked. “It’s an obvious concern.”

Turner said there are two methods of enforcement. One is the state Board of Medicine, which oversees doctors through licensing. The other would be through the courts, but Turner said the Idaho Supreme Court ruled a doctor could not be judged by an “objective standard of what a reasonable doctor would do.”

“That’s not the standard,” Turner said. The standard is “the doctor’s good faith medical judgment, which is subjective,” Turner said.

--Bart Jansen

Pro-choice voters say they are 'supremely' ticked off

Pro-abortion protesters blocked off the stage and shouted chants as pro-life speakers ascended the stage to speak against the Biden administration’s challenge to Idaho’s abortion restrictions.Carol Tobias, president of the National Right to Life Committee, said the Biden administration was attempting to “twist the compassionate” law barring emergency rooms from turning away patients towards a “radical agenda of unlimited abortion.”“This administration has become a one trick pony with the death of unborn children their primary goal,” she said.Demonstrators converged on the stage amid the speeches, chanting, “pro-life lies.” They waved signs in front of the speakers reading, “abortion saves lives” and, “I’m pro-choice and supremely pissed off.”

-- Cybele Mayes-Osterman

Denying care to dying women?

Justice Sonia Sotomayor argued Idaho’s law could lead to not treating a woman dying because of the restriction against abortion.

“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,” Sotomayor said. “Your theory of this case leads to that conclusion,” she added.

Turner replied that all states have an exception for saving the life of the mother. When Sotomayor interrupted him, Chief Justice John Roberts asked to hear the rest of his answer.

Turner argued that the federal government’s position “is fraught” because it boils down to a dispute over who decides treatment between the American College of Obstetrics and Gynecologist (ACOG) and the Idaho law.“I know of no state that does not include a life-saving exception,” Turner said. “That really boils down to conflict between ACOG and Idaho law.”

--Bart Jansen

Debate over proper standard of care

Justice Elena Kagan asked Idaho’s attorney if he concedes that abortion is the standard of care in some situations.

“No,” Joshua Turner responded. He said the standard of care in Idaho is to intervene only if necessary to save the life of the mother.

--Maureen Groppe

Debate over the law’s limits on availability

Idaho lawyer Joshua Turner tangled with the court’s liberals over Idaho’s argument that EMTALA limits care to what is available at a hospital.

Justice Sonia Sotomayor called it “absolutely clear” that availability refers to staff and facilities.

“Do you have enough doctors?” she said. "Do you have the right facilities?"

Turner said that question can’t be answered without looking at what state licensing laws dictate. There’s “legal availability” as well as what staff and equipment is physically available at a hospital.

--Maureen Groppe

Federal law requires treatment to stabilize emergency patients: Sotomayor

After Idaho lawyer Joshua Turner conceded that the federal law requires local doctors and hospitals to stabilize patients suffering emergencies. Justice Sonia Sotomayor jumped in to say it was important the federal government requires the treatment.

“When you concede that (the federal law) imposes a stabilization requirement, it is the statute – the federal government – interfering if you will in a state’s health care choices,” Sotomayor said. The federal law “is on its face a statute that says it’s not all the state’s way. There are federal requirements here. There is a requirement to stabilize emergency patients. You agree with that.”

--Bart Jansen

Idaho says states regulate the practice of medicine

Joshua Turner, the attorney representing Idaho, opened his argument by telling the court the federal government is misreading EMTALA.

“States regulate the practice of medicine,” he said.

Turner said it’s always been understood that licensing laws limit what doctors can do. That doesn’t change, he said, when the issue is abortion.

--Maureen Groppe

Federal law doesn't mention abortion

Idaho’s attorneys are expected to focus on the fact that the federal law doesn’t specifically mention abortion but it does provide explicit protection for “unborn children.” For example, the law’s definition of an emergency medical condition includes one that places the “health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy.”

The Biden administration and their backers counter that Congress added that language to make it clear hospitals must provide care to an unborn child even if the woman’s own health is not at risk.

“That language was added in order to expand access to care for pregnant people, not to limit it,” said Katie O’Connor, director of federal abortion policy for the National Woman’s Law Center.

--Maureen Groppe

Doctors say abortion bans hurting health care

More than 50 obstetricians have stopped practicing in Idaho since the state’s ban took effect in August 2022, according to the Idaho Physician Well-Being Action Collaborative, a group created by local physicians in 2018.

Two hospitals have closed their labor and delivery services.

Idaho already had a shortage of doctors before the ban.

Dr. Caitlin Gustafson, an OB-GYN, has stayed in Idaho but said she understands why others are leaving.

“Because, really, how many physicians are willing to subject themselves to the risk of jail time and civil financial penalties for doing their job?” she recently told reporters.

--Maureen Groppe

Lower courts divided on the issue

The lower courts have differed over whether the federal law trumps states’ abortion restrictions.

The Louisiana-based 5th Circuit Court of Appeals sided with Texas, ruling in January that the administration can’t use EMTALA to require Texas hospitals provide emergency care abortions.

Conversely, a federal district judge in Idaho said the state couldn’t enforce the part of its ban that applied to emergency care when a patient’s health is at risk. That decision was overridden by three Trump-appointed judges on the California-based 9th Circuit Court of Appeals – only to be later reversed by the full circuit.

--Maureen Groppe

Pink hats and 'pro-choice is a lie' signs

Both sides of the abortion debate battled outside the Supreme Court ahead of the arguments over the near-total ban in Idaho.Demonstrators held signs reading “abortion is essential healthcare” and wore pink hats with the logo of Planned Parenthood. One large sign read, “Be a feminist. Fight fascism.” above the website for the women’s march.On the opposite side of the court, a podium and loudspeakers were assembled next to purple signs bearing anti-abortion messages like, “Make abortion unthinkable” and “Emergency rooms are not abortion clinics.”As pro-choice demonstrations began, a group of anti-abortion protesters approached, shouting through a megaphone, “Pro-choice is a lie. Babies never choose to die.”

-- Cybele Mayes-Osterman

What are the abortion restrictions in Idaho?

It’s a crime in Idaho to terminate a pregnancy unless the mother’s life is at risk or in cases of rape or incest, if the assaults had been reported to law enforcement and copies of the reports are provided to the abortion providers.

Performing an abortion, or assisting in one, is punishable by up to five years in prison. Doctors can also lose their medical licenses.

--Maureen Groppe

A high-profile case near the end of a historic Supreme Court term

The high-profile abortion case being argued Wednesday at the Supreme Court is the second-to-last of this term.

It comes one month after the justices considered a challenge to a commonly used abortion drug and as the abortion issue continues to remake electoral politics, including in Arizona where a near-total ban from 1864 is back in play.

-- Maureen Groppe

Abortion 'die-ins' staged outside the Supreme Court

The organization called Women’s March staged a “die in” Wednesday morning, where 15 people in sheets with fake blood stains — the number meant to represent states with near-total abortion bans — laid down in a row in front of the Supreme Court steps.Behind them “mourners” in black clothing and veils held signs that read “Without EMTALA, women in” this state “will die,” for each of the 15 states.After 15 minutes on the ground, the protestors stood and began chanting, “abortion is healthcare.”— Savannah Kuchar

What is the federal law being debated?

In 1986, Congress passed the Emergency Medical Treatment and Labor Act (EMTALA) to prevent hospitals from turning patients away if they couldn’t pay. Hospitals that receive federal funding, such as Medicare or Medicaid, must provide “necessary stabilizing treatment” when the health of the mother is in danger – not just when she’s on the brink of death.

After the Supreme Court overturned Roe, the Biden administration said it would be using the law to make sure pregnant women in emergency situations get the care they need, even if that includes abortion.

--Maureen Groppe

This article originally appeared on USA TODAY: Supreme Court updates: Arguments in emergency abortion case