Next Wednesday, the United States Supreme Court will hear oral arguments on whether the state of Idaho has the right to set an abortion ban that may conflict with the Emergency Medical Treatment and Active Labor Act, or EMTALA.
The act is a federal law that applies to emergency rooms in hospitals that accept Medicaid, and it mandates that those facilities must provide treatment to stabilize patients in emergencies. The U.S. Department of Justice argues that sometimes those treatments could include abortions. The State of Idaho, represented by Attorney General Raúl Labrador, argues that the abortion ban does not conflict with EMTALA, as it allows physicians to perform abortions when the patient’s life is in danger – but not all stabilizing treatments are to prevent death, some are to improve the patient’s health. In January the court lifted the stay on the law, allowing Idaho to fully enforce it.
On Thursday, constitutional law professor McKay Cunningham with the College of Idaho joined Melissa Davlin for a preview of those oral arguments.
Read: Does EMTALA Override Idaho’s Abortion Laws?
This conversation has been lightly edited for clarity.
Melissa Davlin, Idaho Reports:
Thanks for joining us. Can you give us an idea based on the briefs that have already been filed what the arguments are going to be?
McKay Cunningham, College of Idaho:
The arguments are going to center around one central question, and it’s a legal question, and that is whether or not the federal law EMTALA conflicts with Idaho’s abortion statute. If there’s a conflict with regard to one small portion of Idaho’s abortion statute, then the supremacy clause in Article VI of the U.S. Constitution would say that one small portion of Idaho’s abortion law is invalid.
Davlin:
For those who aren’t familiar, what is the supremacy clause?
Cunningham:
The supremacy clause is a clause that’s been in the Constitution from the beginning in 1789. It simply just provides that if there’s a conflict between either the U.S. Constitution or a federal statute and a state or local law, then the federal law is supreme. It’s been applied countless times, that’s not really part of the question in front of the court. The question really is, is there in fact a conflict between the federal law and the state law?
Davlin:
And there are two parallel issues here – medically what physicians and experts say is sometimes necessary to stabilize a patient, and constitutionally whether there is that conflict there. Those two aren’t quite meshing.
Cunningham:
Yeah, it kind of begs the question from a medical provider’s point of view, can they comply with both laws or is it impossible? So, if we could reduce it to an example. If you have a woman who is wheeled into the emergency room here in Idaho and you have a physician trying to treat this woman, EMTALA the federal statute says that the physician has an obligation to provide necessary stabilizing treatment. And the standard of care across the nation, in many instances, is to provide abortion care in certain instances, to provide that stabilizing treatment, of course with consent of the patient. But if they do so, they will be in conflict with the state statute, which says you cannot provide an abortion for stabilizing care. The only time in this instance that you can provide an abortion is if it is to save the life of the woman.
Davlin:
What legal questions then do you think the justices will be considering when they hear these two arguments – from the state that says we have the right to set our own policy, versus the U.S. Justice Department that brought this suit in the first place?
Cunningham:
Looking at the briefings, one of the central arguments of the state of Idaho is that EMTALA does not conflict with our abortion statute. EMTALA is really a federal statute that says you can’t turn away a patient just because they’re uninsured. If they need emergency care and you take Medicare money as a hospital, you have to treat that patient. This has nothing to do with abortion. That word is not listed in the federal statute EMTALA, and so there is no conflict.
The state is also arguing that it’s our decision. Idaho voters have voted in representatives who have created this abortion law, and it’s the state’s prerogative to determine when an abortion can and cannot happen in the state. Federal government, get out.
Davlin:
There’s also the question – I’m not sure if this is going to come up in court or if this is a more philosophical and medical question – but how easily can you call when a woman might die, or will die, when she is in the emergency room? How do you define stabilization? How do you say that this is necessary to stabilize the patient?
Cunningham:
That’s a lovely question, and I think medical providers are in the best position to make that decision. It kind of tees up a wonderful point, because this is a legal argument, but in order to determine the answer to that question – what’s the differentiation between providing stabilizing treatment and providing treatment only if the life of the mother is clearly at risk – what’s the differentiation between them? If you ask medical providers, they say yes there’s a clear difference. In fact, there were five amicus briefs filed in this U.S. Supreme Court case that’s pending right now, and they’re all from national medical associations and they all uniformly say there’s a big difference.
If a woman comes into the emergency room and you delay giving her stabilizing care, all kinds of really bad things can happen medically – including amputation, including kidney failure that requires permanent dialysis treatment, including permanent infertility, all those sorts of things. If you ask doctors, typically the answer is yeah, there’s a big difference between providing stabilizing treatment and only providing treatment when it’s clear that the life of the woman is in danger.
Davlin:
Those are all terrible outcomes, but not necessarily life-threatening. If I am in a situation where I might need a hysterectomy if I don’t get that stabilizing treatment, that doesn’t necessarily mean that I’m going to die. Do you think the justices will consider that medical opinion, or are they going to be looking strictly at whether these laws conflict?
Cunningham:
That remains to be seen. My inclination – and it’s always risky to predict what the Supreme Court will do – but my inclination is that the conservative judges in particular will really just focus on the law, and whether or not they believe that EMTALA directly conflicts with Idaho’s abortion statute. I don’t know. I don’t think that they will really take into full consideration what the experiential background is from women and patients and from medical providers in making that decision.
Davlin:
Because again, those are two different questions. The medical expertise and legally whether those two things conflict, they are different conversations.
Cunningham:
Yes.
Davlin:
Regardless of what the decision is, how might it affect policy nationwide and state by state?
Cunningham:
This is interesting in the sense that when the court decided Dobbs, one of the biggest motivators and one of the biggest justifications analysis-wise is these decisions should be made by the states, right, and not by the court. But here, the court is in the awkward position of doing the same thing that it tried to avoid in Dobbs, because it’s going to make a decision in this case and it will have the effect not just in Idaho but across the nation. So if the court decides that EMTALA does in fact preempt this kind of an exception, at least 14 other states are going to have to change their law or that portion of their law will be invalidated along with Idaho’s. So it has a bunch of policy implications.
Another one which is pretty interesting and hasn’t been discussed a lot is that if Idaho wins and Idaho’s abortion ban can be enforced fully, that means that there’s a precedent for other states to suggest we don’t want to comply with EMTALA. With regard to AIDS patients, or we don’t want to comply with EMTALA by providing medical care to mental health issues. It kind of opens the door for other groups to say that emergency medical care under EMTALA, we’re not going to go that way because it’s our state’s prerogative to say that we don’t want to provide emergency medical care to AIDS patients for example.
Davlin:
All right, McKay Cunningham, thank you so much for joining us.
Cunningham:
Thank you.