The Daily - The New Abortion Fight Before the Supreme Court

Episode Date: May 1, 2024

As the presidential race moves into high gear, abortion is at the center of it. Republican-controlled states continue to impose new bans, including just this week in Florida.But in Washington, the Biden administration is challenging one of those bans in a case that is now before the Supreme Court, arguing that Idaho’s strict rules violate a federal law on emergency medical treatment.Pam Belluck, a health and science reporter at The Times, and Abbie VanSickle, who covers the Supreme Court, explain how the federal law, known as EMTALA, relates to abortion, and how the case could reverberate beyond Idaho. Guests: Pam Belluck, a health and science reporter for The New York Times.Abbie VanSickle, who covers the Supreme Court for The New York Times.Background reading: Here’s a guide to the Emergency Medical Treatment and Labor Act, the federal law at the heart of the case.And here are five takeaways from the Supreme Court arguments on Idaho’s abortion ban.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. As the presidential race moves into high gear, abortion is at the center of it. Republican-controlled states continue to impose new bans, including just this week in Florida. But in Washington, the Biden administration is fighting back, challenging one of those bans in a case that is now before the Supreme Court. Today, my colleagues Pam Bellick and Abby VanSickle explain. It's Wednesday, May 1st. So, Pam, in the two years since Roe v. Wade was overturned, more than a dozen states have instituted pretty strict bans.

But as all of these bans are happening at the state level, something is happening at the federal level. And that is the Biden administration is fighting back in a kind of unusual way. And that effort came to the Supreme Court last week. Tell me about it. Yeah, so the case that went before the Supreme Court last week is basically a fight between the state of Idaho and the Biden administration over whether Idaho's abortion ban violates a federal law that's been on the books for decades. And if it does, then does Idaho have to change its abortion ban? And this case really gets at a bigger question about whether there are still ways that the federal government can limit states'

ability to ban or restrict abortion. Okay, just to clarify here, the Supreme Court, of course, in Dobbs, left it to states to determine their own abortion policies. But what role was left for the federal government? Was there one? Dobbs eliminated the constitutional right to abortion, right? It said that there's no guarantee anywhere in the country that people have a right to abortion access and that states can make their own laws around abortion. But it didn't completely eliminate any other way that federal government laws or regulations interact with abortion.

Right. So that left the Biden administration looking around to try to figure out what, if anything, the federal government could do to weigh in on abortion. And it turned out that there were really very few tools left to the federal government. But it does find this one federal law from 40 years ago. And the law really has nothing to do with abortion. It doesn't mention abortion. It is all about emergency room medical care. But the Biden administration thinks that it has found a way to use this law to fight some of the strictest abortion bans that states like Idaho are putting into play. So in other words, the Biden administration

is basically rummaging around in its back closet, looking for some way to protect abortion rights in there. Doesn't find much, but it does find this old dress. And that's the law that's in front of the Supreme Court right now that you're talking about. Tell me about that law. Right. So this is the Emergency Medical Treatment and Labor Act. As an abbreviation, it's referred to as EMTALA. And EMTALA was passed to try to fix a problem that was getting increasingly widespread in the country in the 1980s. And what was happening was a problem called patient dumping.

What this meant was that mostly private hospitals, if a patient showed up to their emergency room and the patient didn't have insurance or couldn't otherwise pay, these private hospitals were closing their doors to these patients. And they were sending them to public hospitals, county hospitals, and there were these horrific examples of people who were showing up in emergency rooms at public hospitals, having been kicked out of the private hospital with stab wounds and gunshot wounds. I mean, there was one case in Texas where a man with third-degree burns stumbled into a county hospital with a catheter and an IV line

that had been inserted by the private hospital that had kicked him out. Oh, my God. And this was creating a lot of public alarm and getting a lot of attention. And some of the cases involved pregnant women in labor. And these private hospitals were turning them away before their babies could be born. And one example, in Texas,

this woman went to a private hospital and when she told them that her husband had just lost his job, they pushed her legs together, started an IV line and sent her over to this county hospital. And she was crowning, according to the doctor who was at the hospital, and the baby was just coming any minute. She delivered in the hallway of the hospital. So this is a serious public problem. Yeah, and Congress is under pressure to take action to try to prevent this. And so in 1986, they enact EMTALA, this federal law, which really was landmark. It was really kind of groundbreaking. And basically what this law does is it says emergency rooms in hospitals that receive Medicare funding, which is almost all hospitals in the country, Medicare funding, which is almost all hospitals in the country, have to treat any patient that shows up with any emergency medical condition. It requires emergency rooms to stabilize the

patient. They have to give at least a basic standard of treatment to make sure that their health doesn't get worse, that their condition doesn't deteriorate. And if they can't do that, they don't have the ability to do that, they have to transfer the patient to a hospital that can. And it crucially does not matter if they can't pay for it or if they have no insurance. But where does abortion come into this?

I mean, we're obviously talking about this in the context of the abortion fight, right? From what you're saying, it sounds like the law really had more to do with women coming in to try to have their babies delivered, not women coming in to try to have abortions. Exactly. I mean, abortion is not mentioned in EMTALA, and it was not really something that even came up in the passage of the law. The law was really addressing these horror stories of women in labor being turned away from hospital emergency rooms. But the law does include this two-word phrase that decades later becomes part of the abortion debate.

And that phrase is unborn child. Now, at the time, that phrase shows up very much in this context that we've been talking about of women who are about to deliver a baby. So abortion is not mentioned in this law at all and it wasn't even really in the background of at the time when it was passed. After EMTALA is passed, it has been used over the last four decades to basically try to ensure that patients with all kinds of conditions don't get turned away from emergency rooms. And it doesn't come into the abortion debate until nearly four decades later when the Biden administration decides that it can use this law to try to at least open some cracks into these very rigid state abortion bans. Okay, so you brought us back to the beginning where we started this conversation, which is this current case, right? Idaho versus the Biden administration.

So how did that fight actually break out? Yeah, so after Roe v. Wade was overturned, a number of states, including Idaho, put into place near total abortion bans. Idaho's ban has very limited exceptions for abortion. And one of the only times abortion is allowed is to keep a pregnant woman from dying. But the Biden administration issues a memo and it says, hey, hospitals, hey, states, we're just reminding you, the interpretation of EMTALA applies to women who come to emergency rooms and need emergency abortions. So what the Biden administration is saying is this federal law says preventing death is not the only reason that emergency rooms have to treat people. They also have to prevent people's health situation from getting worse.

Because there are many situations where a woman is bleeding, you know, severely, or she has a severe infection, but maybe she's not about to die. And so there's a pretty wide gulf between situations where a pregnant woman might need an abortion to save her life and when she might need an abortion to protect her health. So the Biden administration is saying, look, this federal law requires that you protect not just the woman's life, but also the woman's health, which of course brings it into direct conflict with Idaho's ban, right?

Exactly. And what the Biden administration is going after here is something much broader, something that goes beyond emergency room care. What they're targeting here is the concept in Idaho's ban that you can't intervene except to save the life of the mother. And by pointing to EMTALA and saying this law requires you to intervene to protect a patient's health, they want to force states with these strict bans

to acknowledge and allow abortions in a number of these cases of pregnancy complications that happen. And by doing that, it really wants to also create a crack in the foundation of these abortion bans. Got it. So that's the crack in the foundation that you're talking about. It's not just about this narrow demographic of women who would be in this situation, but it gives them legally, potentially, a path to do something bigger. And the Biden administration actually decides to be very aggressive with this EMTALA law. And so very soon after Roe v. Wade is overturned, the Biden administration sues Idaho and says, your abortion ban is violating this federal law and your abortion ban cannot stand. And Pam, what does Idaho say in response?

What's its argument here? So Idaho says it is not violating EMTALA and it accuses the Biden administration of wanting to turn emergency rooms into abortion clinics and wanting to force Idaho doctors to provide abortions against Idaho's law. And this is also where that phrase unborn child comes up. Idaho is picking up on that language in EMTALA. And it's saying that because the federal law mentions unborn child, that that means you have two patients to consider when a pregnant woman goes to an emergency room. And if you're doing

an abortion, then you're, in their view, killing one of those two patients. And that's why they are outlawing the ability to do that. So in other words, this law from 1986 is really being used by both sides through the lens of 2024, both by the Biden administration, who's saying it says that abortions need to be provided in emergency rooms, and by Idaho saying, no, not so fast. The unborn child has equal protection here because that's in the law. Right. So you have both sides using this 40-year-old law that really had nothing to do with abortion when it was passed, and they're trying to cast it in a light that serves their side of the abortion debate. And so this case ends up in the Supreme Court,

and it's important to note that this fight isn't just between Idaho and the Biden administration. There are about half a dozen states that have strict abortion bans, like Idaho's, including Texas, which has been embroiled in a lawsuit over Amtala with the Biden administration also. So whatever the Supreme Court rules in this case is going to have implications across the country, and it's going to help shape what states can do if they want to ban or restrict abortion. After the break, my colleague, Supreme Court reporter Abby Van Sickle, on the oral arguments. We'll be right back. So, Abby, our colleague Pam Bellick just walked us through how this very unusual Idaho abortion case got to the Supreme Court.

You covered the oral arguments last week. How did they go? So a lot of the oral argument really focused on a question about how far states can go when they are crafting their own abortion laws. And sort of the backdrop of this is that there's part of the Constitution that deals with this question of what happens when a state law and a federal law are in conflict, and it's called preemption. And the general principle is that when a state and federal law collide, if they're in conflict with each other, that the federal law wins. And so the argument in this case really focused in on whether the Idaho abortion law directly conflicted with the federal EMTALA law or not.

You will hear argument this morning in case 23726. And the argument started out with the lawyer for Idaho, Joshua Turner. Mr. Turner. Thank you, Mr. Chief Justice, and may it please the court. When Congress amended the Medicare Act in 1986, it put EMTALA on a centuries-old foundation of state law. And Turner says that he does not see a direct conflict between Idaho's abortion law and the federal law.

Nothing in EMTALA requires doctors to ignore the scope of their license and offer medical treatments that violate state law. He argues that in Idaho, if a woman's life is in danger, that there are exceptions that allow abortions and that there's flexibility for doctors to use good faith judgment. And he's saying that Idaho is satisfying the federal law's requirement to provide women with stabilizing care. The court should reject the administration's unlimited reading of EMTALA and reverse the district court's judgment. I welcome the court's questions. In other words, you know, nothing to see here. Our ban gives exceptions if the woman's life is

at risk. And that is in full compliance with this federal law, this EMTALA, that mandates care, right? So how do the justices respond to this argument Turner's making? So when the lawyer for Idaho started making that argument, a group of justices right away seemed skeptical. And those were the liberal justices. Counsel, the problem we're having right now is that you're sort of putting preemption on its head. Justice Sonia Sotomayor jumped in pretty quickly to say, what do you mean that there's not a conflict between Idaho's abortion law and federal law?

Idaho law says the doctor has to determine not that there's merely a serious medical condition, but that the person will die. That's a huge difference, counsel. And, you know, to kind of bring this down to earth. Answer the following question, and these are hypotheticals that are true. Justice Sotomayor starts with these hypotheticals of cases, and she explains that they're pulled from real life examples, when delaying an abortion until a woman was close to death had permanent effects on the woman's health. Imagine a patient who goes to the ER with pre-prompt 14 weeks.

She gives one example where there's a patient whose water broke at 14 weeks in the pregnancy. She was in and out of the hospital up to 27 weeks. The baby died. She had a hysterectomy and she can no longer have children. And she said that delaying an abortion caused this woman to lose her fertility. All right, you're telling me the doctor there couldn't have done the abortion earlier? And Justice Sotomayor asks, would Idaho's abortion ban allow abortions in this kind of situation when a woman's health is gravely affected, even though she didn't die. And Idaho's lawyer responds that it's up to the doctor. Again, it goes back to

whether a doctor can, in good faith, medical judgment. That's a lot for the doctor to risk. And that this is case by case. I'm kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered. And you're now saying they're not? And as this exchange is going on, another justice jumps in, which is a bit of a surprise, because it's Justice Amy Coney Barrett, who is one of the court's conservatives. And she jumps in and says, Well, you're hedging. I mean, Justice Sotomayor is asking you, would this be covered or not?

And it was my understanding that the legislature's witnesses said that these would be covered. Wait a second. In the record, in the documents leading up to this case, she thought that Idaho was arguing that those kind of examples, the kind of example where, you know, a woman needs an abortion or she has to have a hysterectomy, this sort of really extreme loss of organs and loss of future fertility. She says, I thought all of that was covered. She's essentially looking at these medical scenarios and saying, hold on a second, wait, there's a question here about whether that would be legal and kind of scratching her head, which is interesting and

unusual given that she's a conservative who's pretty skeptical usually of arguments in favor of abortion rights. That's right. And of course, we can only observe what she said and try to figure it out. But, you know, she might have found herself more in an alliance with the liberal justices, which not only would be surprising given her sort of positions and her past record on abortion, but also could potentially set up a gender split on the Supreme Court in an abortion case, which would be, you know, pretty stunning. Okay, so interesting kind of gender divide forming here. What do the men on the conservative side of the court say? So the men on the court, the conservative justices,

they jumped in pretty quickly after that. And Justice Kavanaugh comes in. I just want to focus on the actual dispute as it exists now, today. And he's kind of suggesting that the justices turn away from the hypotheticals and focus back on what it actually says in the legal documents that were filed by each side before the oral argument. You have said in your brief, at least, that each of the conditions identified by the government, actually Idaho law allows an emergency abortion. And Justice Kavanaugh says that the federal government in their briefs listed all these specific conditions where a woman should be provided access to an abortion under the federal EMTALA law.

And based on Idaho's own legal filings, he says, the state says it would allow exceptions for abortions in these same types of situations. You're the one who said it in your reply brief that there's actually no real daylight here in terms of the conditions. So I'm just picking up on what you all said. So in other words, the conservative justices are really kind of responding in the way that we would expect them to, right? They're sympathetic to Idaho's argument. They're saying that law is flexible enough to comply with EMTALA. That's right.

Thank you, counsel. And so that sort of wrapped up the first part of the argument. And the next person up to the podium was the lawyer arguing for the federal government. General Prelugger. Mr. Chief Justice, and may it please the court. So what did the federal government solicitor general argue? What was her case? So Elizabeth Prelogar, who, you know, she's actually from Idaho.

Oh, right. Yes. And she argues, you know, before the court all the time. And she started out by bringing the argument back to this idea that the liberal justices were really focused on before. No one who comes to an emergency room in need of urgent treatment should be denied necessary stabilizing care. Which is the federal government's view that there is a profound gap between what EMTALA requires and what is in the Idaho abortion law. The situation on the ground in Idaho is showing the devastating consequences of that gap. And she points to the real-life consequences of this.

One hospital system in Idaho says that right now it's having to transfer pregnant women in medical crisis out of the state about once every other week. That's untenable, and EMTALA does not countenance it. And the Solicitor General is saying that this has, you know, gotten to the point where every other week, Idaho hospitals are airlifting women to hospitals in other states to provide abortion care. Airlifted out of state. And is that true? Yeah. So there's been local reporting in Idaho that since this abortion law has gone into effect,

which has just been, you know, a number of months, that six women have been airlifted to other states. So Justice Kagan pushes on that. It's become transfer is the appropriate standard of care in Idaho, but it can't be the right standard of care to force somebody onto a helicopter. She says that it just doesn't seem to make sense that the right standard of care is to put a pregnant woman on a helicopter to another state. Justice Alito?

But one of the most interesting things that happens in the interaction with the Solicitor General is actually that Justice Alito jumps in. And he sort of takes the conversation in a totally new direction. We've now heard, let's see, an hour and a half of argument on this case. And one potentially very important phrase in EMTALA has hardly been mentioned, and that is EMTALA's reference to the woman's quote-unquote unborn child. Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase unborn child?

seen an abortion statute that uses the phrase unborn child. And he says, you know, isn't it strange that this federal law that you are arguing to require abortions includes language that would typically be used by people who are against abortion? And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child. But performing an abortion is antithetical to that duty. It's not an odd phrase when you look at what Congress was doing in 1989. And the Solicitor General responds by saying, let's look back to what this law actually meant and what it was designed to address in the 1980s. And she explains how when this law went into effect,

you know, not only would a woman potentially be dumped from one emergency room if she couldn't pay, but that if a woman came in and the medical problem was actually with the fetus, that she also might be dumped. Congress wanted to expand the protection for pregnant women so that they could get the same duties to screen and stabilize when they have a condition that's threatening the health and well-being of the unborn child. And she says that's actually why the language is there, that it's not sort of anti-abortion code. So what's Alito really up to here? I mean, clearly this idea of unborn child, you know, it's very important in the anti-abortion movement. It's essentially linked to this idea of personhood and that the fetus is actually a person that should be protected. But that's not really what this case hinges on. So what's he doing? can't get inside Justice Alito's head. But in the lead up to these arguments, there had been sort of speculation about whether the idea of fetal personhood would make an appearance. It's

not the focus of the legal arguments here. But if you look back to the Dobbs case, that case also was not a fetal personhood case. But that language made its way into his opinion. He wrote the majority opinion for the court. And so I think it'll be interesting once a decision comes out, whichever way it goes with this court, whether the language of fetal personhood makes its way into the court's decision in some way. And that is important because, you know, it's the Supreme Court. And the language that they use then gets cited by courts and judges all over the country. And right now, fetal personhood is not sort of the accepted mainstream in the legal world. But language like that from the Supreme Court,

it could be cited in cases around the country. Interesting. So even though the case isn't actually about that, Alito can just kind of sprinkle it through and it could be cited later as evidence that the Supreme Court is actually elevating this and talking about this. Yeah, that's a possibility. And it's definitely something people will be watching out for when the court makes its decision and the case later this year. Thank you, counsel. The case is submitted. So, Abby, do you have a sense after this very interesting set of arguments here how the justices will rule?

You know, we're in a bit of uncharted waters here. It's hard to say how the court is going to come out in this case. I think Justice Barrett jumping in to say that she was shocked by some of the arguments being made by Idaho raised some questions about whether she could potentially align herself with the other, you know, women justices who are all liberals. But a majority of the conservative justices did seem to be sympathetic to Idaho's arguments. It could be a case that comes down to Justice Barrett and the chief justice, who was actually pretty quiet during arguments. And I wouldn't say that it was clear how he was going to come down on this. And, you know, I think that's something that's important about this case is that,

you know, it's likely to give us a substantive real window into how the justices now post-Dobbs are thinking about abortion and how it's playing out in all these different ways in states throughout the country. Abby, I guess I'm thinking, you know, whatever the outcome is, there's something else that's happening here. And I'm thinking here about the timing, right? The ruling will come just as the presidential campaign really heats up in the end of June. up in the end of June. And we know that very strict abortion bans don't play very well to the mainstream American voters. So if this ruling does go for Idaho, it would draw lines around abortion access that are even more restrictive than many states have at such a political moment. You know, I think it's certainly fair to say that this decision

will be closely watched and that it also could draw the court into the politics of abortion. And one of the things, you know, that I just can't help but think is that when the court made its decision in Dobbs to overturn Roe v. Wade that Justice Alito made a point of saying that the court was getting out of the business of abortion, that this was something that would be left to the states. And now the court, as we've seen in this case, is wrestling with very sort of granule hypotheticals about the you know, the different emergencies that could come up and when is this okay and when is this not okay? And they are still very much in the weeds of abortion. So, so much for the Supreme Court being done with abortion cases. It's right

back there smack dab in the middle of one of the most contentious issues in American life. That's right. It certainly is. And so, yeah, it's hard not to think about the court putting itself again in the middle of this fierce debate, in the middle of a huge political fight. middle of a huge political fight. Abby, thank you. Thanks so much for having me. We'll be right back. Here's what else you need to know today. We can see different cohorts of NYPD officers. One is going across Butler Lawns towards Hamilton Hall. On Tuesday, tensions over pro-Palestinian protests continue to escalate on university

campuses across the country. At Columbia University in New York, hundreds of police officers in riot gear began arresting demonstrators on Tuesday night, about 20 hours after protesters had occupied a campus building. They're entering the encampment now. I mean, I'm not sure I've reported on this before. There is about a crowd of, I'd say, 30 or 40 police officers with batons and zip ties right outside the Gaza Solidarity encampment right now. The Columbia University student radio station reported that police used tear gas to disperse people and that at least

one person was lying on the ground unconscious during the raid. Earlier in the day, the university closed the campus to everybody but students who lived there and said it would move to expel students who had occupied the building. In Oregon, Portland State University closed its campus after students there broke into its library. Police officers made scores of new arrests at universities in California, Georgia, North Carolina, and Virginia. More than 1,000 protesters have been taken into custody on U.S. campuses since the original roundup at Columbia on April 18th. Today's episode was produced by Stella Tan, Alex Stern, and Jessica Chung. It was edited by M.J. Davis-Lynn, contains original music by Marion Lozano, and was engineered

by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.