Bloody Sam’s Nullification Machine I: EMTALA

The two big oral arguments that stained the Supreme Court this week make for jaw-dropping reading. (I am once again reminded of the old-line Republican lawyer adjuncting at CUNY who condescendingly told me during the Alito nomination that liberals were catching a real break to get such a sensible moderate and I was completely wrong to evaluate him based on him voting record rather than his dry, technical prose. At least that superficial contradiction has been resolved!). Moyle v. US [transcript, audio] is a chilling look into the dead heart of the American anti-abortion movement as well as the conservative legal movement that is deeply entwined with it. Idaho’s hired goon was insistent enough on presenting the most radical interpretation of Idaho’s radical anti-abortion statute it gave Lithwick and Stern a little optimism that he may have alienated Coney Barrett. I’m not sure about that — and of course her vote still wouldn’t be enough — but his attempts to evade the plain language of EMTALA were ludicrously incoherent:

Wednesday’s case, Moyle v. United States, revolves around a clash between Idaho law and a 1986 federal statute called the Emergency Medical Treatment and Labor Act (or EMTALA). Idaho’s abortion ban has no exception for the health of the patient; rather, it criminalizes abortion unless it’s “necessary to prevent the death of the pregnant woman.” EMTALA, meanwhile, requires virtually all hospitals to provide stabilizing treatment for any condition that “could reasonably be expected” to put the patient’s health “in serious jeopardy,” as well as any condition that could seriously impair bodily functions or organs.

The Biden administration argues there’s a conflict between Idaho law and EMTALA: Where Idaho allows termination only when the patient is at the brink of death, EMTALA mandates intervention earlier, to stabilize the patient before she is literally dying, including situations in which she is facing organ damage, infertility, or other serious harms. So the administration sued the state, and a federal judge issued an injunction compelling Idaho to allow emergency abortions to preserve a patient’s “health.” Now SCOTUS must decide whether the federal statute limits the ability of states like Idaho to criminalize abortions that are health-sparing but not necessarily lifesaving. And that means slipping into their white coats and stethoscopes and explaining to America’s emergency physicians how to do their jobs without risking two to five years in prison and a loss of licensure for making poor guesses about what stabilizing care involves.

Turner, representing Idaho on Wednesday, made a hodgepodge of his state’s arguments that are frankly difficult to harmonize. He seemed to make three central claims: First, that EMTALA does not mandate any particular standard of care (despite prescribing one pretty clearly); second, that even if it did, Idaho’s law would comport with that standard (even though it criminalizes abortion as stabilizing treatment); and third, that abortion is never a standard of care under Idaho law. Except for when it is, which is when it’s necessary to save a patient’s life. Which is a narrower standard than what EMTALA mandates. Which is irrelevant, because, according to Turner, EMTALA doesn’t mandate anything at all. But also, that there is a difference between the care demanded by EMTALA and Idaho, but also that there is no difference, but also that physicians shouldn’t sweat this because beneficent prosecutors probably won’t jail them on the basis of a close call. 

Confused? So were the justices. Progressive Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor all took turns trying to draw out a single scrap of consistent logic from Turner’s rhetorical detritus. Kagan pressed him to admit that EMTALA sets forth an “objective standard” of care—the stabilization of a patient—that sometimes includes abortion. He refused. She sounded aghast. Does the statute, she asked, at least require states to permit abortions for ectopic pregnancies, which will cause death if not terminated? No, Turner responded, adding: “That understanding is a humble one with respect to the federalism rule of states.” To which Kagan in turn responded: “It may be too humble for women’s health.”

Jackson questioned Turner’s insistence that EMTALA does not require anything that Idaho prohibits, rebuking his strange declaration that the state’s trigger ban simply defers to the “medical judgment” of state legislatures rather than doctors. And Sotomayor pummeled Turner with real stories, all ripped from the headlines, of women denied abortions and then forced to bleed out in agony, then asked him whether these women would be allowed to terminate under Idaho law. When Turner refused to give a yes-or-no answer, Barrett finally stepped in. “I’m kind of shocked, actually,” she told Turner, “because I thought your own expert had said below that these kinds of cases were covered. And you’re now saying they’re not?” Turner responded that he wasn’t, to which Barrett retorted: “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.” Turner told her, in short, not quite—the witnesses said that, in “exercising their medical judgment, they could in good faith determine that lifesaving care was necessary.” Barrett sounded irritated. “But some doctors might reach a contrary conclusion, I think is what Justice Sotomayor is asking you,” she told him. “If they reached the conclusion that the legislature’s doctors did, would they be prosecuted under Idaho law?”

Turner said no, but Barrett wasn’t convinced. “What if the prosecutor thought differently?” she went on. “What if the prosecutor thought, well, I don’t think any good-faith doctor could draw that conclusion, I’m going to put on my expert?” Remarkably, Turner told her that’s “the nature of prosecutorial discretion”—meaning prosecutors might well bring charges anyway. At that point, doctors would have to defend their decision in court while facing a two-to-five- year prison sentence. (And ER doctors also face lawsuits if they defer lifesaving care.) So in Idaho you can pretty much just decide how to end your career, while spinning the wheel until someone sues you. No wonder physicians are bolting from the state.

The state’s representative could not be making it more clear that any doctor following federal law will potentially face prosecution, based on standards so arbitrary the state’s lawyer can’t explain them.

Meanwhile, Sam Alito continued to lay the groundwork for fetal personhood, the next big goal of Leonard Leo’s flying monkeys:

When Solicitor General Elizabeth Prelogar had her turn at the lectern, she faced a barrage of questions from Justices Clarence Thomas and Neil Gorsuch about whether Congress had run afoul of the spending clause when it passed EMTALA, an issue that was not briefed and should not be in the case. Samuel Alito, who brought all of his dictionary-wielding and woman-erasing skills from his star turn in Dobbs to bear, devoted his time to defending the “unborn child” who—in his view—was the real goal of EMTALA’s drafters, laying the groundwork for fetal personhood arguments that were too radioactive even for Turner to take on. Alito hectored Prelogar about her grasp of preemption, her reading of text, and her understanding of the term “unborn child,” casting her as some drunk lunatic who had staggered into court without any comprehension of the law.

Throughout the day doctors were referenced as “he” whereas every nurse was a “she.” Women were, as Alito conceded, “individuals,” but man, oh man, are they ever whiny and demanding. Alito also breathlessly cited Ronald Reagan as the deity who signed EMTALA and would never have wanted it to undermine the precious rights of “unborn children.” And a little “temporary” organ damage, he mused, might not be so bad if suffered for the benefit of a fetus. The task fell to Kagan to remind everyone that in the few months that Idaho has enforced its near-total ban, six women have already been airlifted to other states to receive emergency abortions that are criminal under Idaho law. Real women, flown out in great pain and at great expense, to get treatment that is objectively recognized as the standard of care.

A particularly striking exchange occurs at 113 of the transcript. After Kagan and Prelogar have the exchange about what is actually happening on the ground in Idaho — including six women being airlifted to Salt Lake City — Bart O’Kavanaugh breezes in to say that whatever is happening on the ground, can we focus on what Idaho is claiming doctors might be able to do in theory? I assume this is a prelude to another case where Kavanaugh joins an insane opinion for the Court and writes an “are we the baddies?” concurrence gaslighting people about the consequences of the opinion he just joined.

The case makes clear that the goal of statutes like Idaho’s — the model the anti-abortion movement would like to apply in all 50 states — is above all sadism toward vulnerable women:

And what is at stake, too, is the extremism of the anti-choice movement, whose insistence on criminalizing life- and health-saving abortions can have no explanation other than bloodthirsty sadism. As the solicitor general, Elizabeth Prelogar – the Biden administration’s lawyer at the supreme court – pointed out in oral arguments, there is no way to preserve the life of a nonviable embryo or fetus without preserving the life of the pregnant woman who carries it; Idaho’s policy makes no sense if preserving fetal life is their goal. But the preservation of fetal life is not the anti-choice movement’s goal. Their goal is to inflict as much suffering on women as possible.

How close to death does a woman have to be before she can qualify for an emergency abortion in a state that bans it? The anti-choice movement’s argument is that women are receiving abortions when they are not close enough. None of this is hypothetical – it is not a question of suffering that could happen, possibly, in the future. These are needless, life-altering injuries that bans like Idaho’s are inflicting on women right now.

During an impassioned series of questions she put to Idaho’s lawyer, Justice Sonia Sotomayor recounted the story of Anya Cook, a Florida woman whose water broke at 16 weeks, before her fetus was viable but after her state’s abortion ban cutoff. Cook was inevitably going to lose her pregnancy, and was at risk of infection. But an emergency room turned her away, saying she wasn’t sick enough. She was not able to get treatment until the next day, when she was near death.

The fact of the matter is that the distinction that the anti-choice movement seeks to make, between “life-saving” abortions and merely “health-saving” ones, is empirically impossible to determine: medical risks in pregnancy escalate quickly and unpredictably, meaning that a medical emergency can become life-or-death with little warning. It is unclear whether this fictional distinction is one the court will enshrine in law. But in another sense, the anti-choice movement has already won: the abortion debate now is being waged not on questions of women’s equality, dignity, and self-determination – these have already been sacrificed by the law as supposedly incompatible with the status of pregnancy.

An atavistic new regime, being smugly enforced by some of America’s most mediocre legal minds. And things didn’t get better at the marble palace the next day.