Supreme Court to Hear Another High-Stakes Abortion Case this Week

The Supreme Court will hear a case on Wednesday surrounding the Biden administration’s attempt to require emergency room doctors to perform abortions under its interpretation of the Emergency Medical Treatment and Labor Act of 1986 (EMTALA).

After the Supreme Court overturned Roe v. Wade, which had invented a constitutional “right” to abortion, the Department of Health and Human Services (HHS) issued guidance claiming that EMTALA requires doctors to perform abortions on patients in emergency rooms when it is “the stabilizing treatment necessary” to help in a medical emergency. Under the guidance, hospitals not in compliance could lose funding and the ability to participate in Medicaid.

After the HHS issued its guidance in July of 2022, the Biden administration sued the state of Idaho over its pro-life law, alleging that it is not in compliance with the federal government’s reading of EMTALA. A district court blocked the state’s pro-life law, an order which the U.S. Court of Appeals for the Ninth Circuit stayed. But within days, the en banc Ninth Circuit vacated its panel’s stay opinion and granted en banc review. The state of Idaho then appealed the decision to the Supreme Court.

Idaho is arguing that Congress did not write EMTALA to require emergency room physicians to perform abortions. Instead, the state is arguing that the law’s original intent was to prevent “patient dumping,” when hospitals refuse to treat patients who are unable to pay for emergency services. The law, as written by Congress, explicitly requires hospitals to provide stabilizing care for both pregnant women and their unborn babies in emergencies, regardless of whether or not they can pay for services, and it makes no mention of abortion.

Idaho’s emergency application to the High Court reads:

EMTALA does not even mention abortion. That statutory silence alone is powerful evidence that Congress did not intend to preempt state abortion laws, particularly given EMTALA’s savings clause. It would be odd indeed if Congress had tucked authority to negate the enforcement of state abortion laws in a relatively obscure provision of the Medicare Act.

And of course, President Reagan and Congress enacted no such thing in 1986. Rather, the United States seeks to discover in a long-extant statute an unheralded power to regulate abortion, claiming for itself a power to address one of the most contentious social, political, and cultural decisions without a word to that effect from Congress.

The United States is arguing that Idaho’s pro-life law — which makes it a felony for a doctor to perform an abortion unless it is necessary to prevent her death — is narrower than its reading of EMTALA. It should be noted that Idaho law does not consider removal of a miscarriage or ectopic pregnancy as elective abortion.

“That exception is narrower than EMTALA, which by its terms protects patients not only from imminent death but also from emergencies that seriously threaten their health,” the reply brief reads. “Idaho law thus criminalizes care required by federal law: Under Section 18-622, an emergency room physician who concludes that a pregnant woman needs an abortion to stabilize a condition that would otherwise threaten serious and irreversible harm may not provide the necessary care unless and until the patient’s condition deteriorates to the point where an abortion is needed to save her life.”

The Supreme Court’s decision to take up the case came just days after the U.S. Court of Appeals for the Fifth Circuit blocked the HHS EMTALA guidance in Texas.

“EMTALA does not mandate any specific type of medical treatment, let alone abortion,” Judge Kurt Engelhardt wrote for a three-judge panel. “We agree with the district court that EMTALA does not provide an unqualified right for the pregnant mother to abort her child especially when EMTALA imposes equal stabilization obligations.”

“The question before the court is whether EMTALA, according to HHS’s Guidance, mandates physicians to provide abortions when that is the necessary stabilizing treatment for an emergency medical condition. It does not. We therefore decline to expand the scope of EMTALA,” he wrote.

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.