Supreme Court Justice Elana Kagan will decide any day now on an emergency petition for an abortion case from Idaho, just under two years after the landmark decision to overturn Roe v. Wade, and legal and policy experts who spoke with the Daily Caller News Foundation said that the court will likely have to wrestle with the issue again soon.
In August 2022, the Department of Justice filed a lawsuit against Idaho for banning all abortions and the state’s Attorney General Raúl Labrador filed a motion with Kagan on Nov. 27, asking that the law be allowed to remain in effect as the lawsuit plays out. The Biden administration is trying to push a “very tortured interpretation” of the Emergency Medical Treatment and Active Labor Act (EMTALA), which prohibits hospitals from turning away patients having a medical emergency, Alliance Defending Freedom Senior Counsel Erin Hawley told the DCNF, and the stage is being set for the nation’s highest court to weigh in on the issue again.
“This is something that the Supreme Court is likely going to need to consider,” Hawley explained to the DCNF.
“It’s certainly possible that the [Supreme Court] would take this case on the merits because there is an important question of how the state law interacts with the federal law,” Katie Daniel, state policy director for Susan B. Anthony Pro-Life America, told the DCNF.
The DOJ argues in its lawsuit that Idaho’s law prevents doctors from treating conditions such as ectopic pregnancies and severe preeclampsia. The department claims that EMTALA requires doctors to not turn away patients in need of “emergency stabilizing care,” which it also argues includes abortions.
“In some circumstances, medical care that a state may characterize as an ‘abortion’ is necessary emergency stabilizing care that hospitals are required to provide under EMTALA,” the lawsuit reads. “Such circumstances may include, but are not limited to, ectopic pregnancy, severe preeclampsia, or a pregnancy complication threatening septic infection or hemorrhage.”
“Not until after the Dobbs decision did the Biden administration stage a stand and say that [EMTALA], which was originally about hospital access, was actually about abortion,” Marc Wheat, general counsel for Advancing American Freedom, which filed a friend-of-the-court brief with the Supreme Court, told the DCNF. “There’s a whole range of efforts across the Biden administration to try to push abortion wherever they can and here, the issue was whether an Idaho law can stand while they are fighting out this case in the courts.”
In 2023, the Idaho legislature amended its law that originally only provided doctors with the right to an affirmative defense if they performed an emergency abortion and created an exception in the law that allows the procedure for saving the life of the mother and in cases of rape and incest. Daniel told the DCNF that the Idaho law, particularly in light of this change, is perfectly in line with EMTALA.
“There was not a conflict, but to the extent they’re saying that there was a conflict before, there certainly isn’t one now,” Daniel said. “And no doctor should feel like there’s any issue here, they’re able to perform life-saving care under our law, and in fact, they need to be treating patients both mother and child as long as that is possible.”
The courts have issued differing opinions on the subject over the past year and a half. In October, the Ninth Circuit Court of Appeals reversed its previous ruling, which had allowed the ban to remain in effect, and said that they planned to re-hear the case after the DOJ’s appeal, but gave no further explanation as to what prompted the decision.
As a result, Labrador, alongside Alliance Defending Freedom, filed an emergency motion to Kagan in November asking her to allow the law to remain in effect while it is in the court system to protect the lives of unborn children.
“Something unusual happened and a panel of the Ninth Circuit vacated that decision and went back and enjoined the law again without any reasoning,” Hawley told the DCNF. “So Alliance Defending Freedom and the state of Idaho, are arguing that it was improper for the Ninth Circuit to overturn its own panel, without any reasoning, as a law should be able to continue into effect while the litigation proceeds at the district court.”
Hawley and Wheat further said that there is ‘”absolutely” a “good possibility” that the case will end up at the Supreme Court again, beyond the emergency motion, and that it will be a pivotal ruling less than two years out from the Dobbs decision.
“There’s a companion case currently taking place in the Texas Court of Appeals in the Fifth Circuit, so they will be coming out with a decision on whether the Biden administration’s interpretation of EMTALA is correct,” Hawley said. “That interpretation could potentially be in conflict with the Ninth Circuit’s interpretation, and if that happens, that would be sort of a prime reason that the United States Supreme Court would need to step in and determine whether the Biden administration’s guidance here is lawful.”
“I think the Biden administration will work to try to knock down protections for unborn children wherever they can find them. … It’s a really cynical strategy and I’m very disappointed with career lawyers who are pushing this, but they’re just doing the bidding of the politicals out of the White House,” Wheat told the DCNF.
The DOJ did not respond to the Daily Caller News Foundation’s request for comment.
Kate Anderson on December 10, 2023
