EMTALA and the politics of abortion rights

Yesterday the Supreme Court heard arguments in the Idaho abortion case. Ian Milhiser summarizes the legal situation:

EMTALA requires hospital emergency rooms that accept Medicare funding to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” Though the law does not specifically mention abortion, it is written in capacious terms. So, if a patient has an “emergency medical condition” and the proper treatment to stabilize that condition is an abortion, the hospital must provide an abortion.

Though the law only applies to Medicare-funded hospitals, that’s nearly all hospitals because Medicare provides health coverage to Americans over the age of 65.

EMTALA conflicts with an Idaho law that bans abortions in nearly all circumstances. While Idaho permits an abortion when “necessary to prevent the death of the pregnant woman,” it does not permit such an abortion if the patient faces a catastrophic health consequence other than death, such as the loss of her uterus.

EMTALA requires emergency rooms to stabilize any patient who is at risk of “serious impairment to bodily functions,” “serious dysfunction of any bodily organ or part,” or other nonfatal consequences that are defined as medical emergencies by EMTALA. So the federal law applies in many cases where the patient is not at risk of death.

Additionally, EMTALA includes a provision saying that state and local laws must give way to the federal requirement to stabilize patients “to the extent that the [state law] directly conflicts with a requirement of this section.”

So, if the Supreme Court were concerned solely with the text of EMTALA, they would hand down a unanimous decision holding that Idaho’s law is preempted by EMTALA, at least to the extent that Idaho prohibits medically necessary abortions. EMTALA does not purport to override most restrictions on abortion, but its explicit text requires hospitals to perform an abortion when necessary to stabilize a patient’s emergency medical condition.

My colleague Jennifer Hendricks, author of the new book Essentially A Mother, listened to the oral arguments yesterday, and I asked her if she had any reaction should would be willing to share with LGM. These are her comments:

Most of my reactions are probably not any different from anyone else’s … There was only brief discussion of the crux of the matter, which is whether Idaho has the right to prefer a few days’ extra life of a doomed fetus over a woman’s organs and life-long health. It’s pretty horrifying to listen to a bunch of men discuss how that should be up to them. Prelogar was excellent. The best moment of the argument was when she had absolutely had it with Alito on that issue:

GENERAL PRELOGAR: But to suggest that in doing so Congress suggested that the woman herself isn’t an individual, that she doesn’t deserve stabilization, I think that that is an erroneous reading of this statute. 

JUSTICE ALITO: Nobody’s suggesting that the woman is not an individual and she doesn’t — she doesn’t deserve stabilization.

GENERAL PRELOGAR: Well, the – 

JUSTICE ALITO: Nobody’s suggesting that. 

GENERAL PRELOGAR: — I think the premise of the question would be that the State of Idaho – 

JUSTICE ALITO: It wasn’t the predicate. It wasn’t – 

GENERAL PRELOGAR: — can declare that she cannot get the stabilizing treatment even if she’s about to die. That is their theory of this case and this statute, and it’s wrong.

[awkward pause]

CHIEF JUSTICE ROBERTS: Justice Sotomayor?

The weirdest thing about the argument was that the liberal justices (and even Prelogar on one or two occasions) seemed to have trouble remembering that the issue was “health” not “life,” because Idaho allows abortion if there’s a likelihood of death. They did do a good job of making clear that Idaho’s arguments about EMTALA would apply in a state with no life exception (which is why Prelogar says “about to die” in that exchange); and an okay job of making the point that Idaho’s law requires withholding care until the likelihood of death manifests. But they all kept saying “death” instead of “health” in a way that muddied the issue.

The argument that it’s appropriate or even possible in the long run for abortion rights or the absence of them to be a matter of individual state legislation has always been totally incoherent as both a moral and practical matter.