Supreme Court to examine a federal-state conflict over emergency abortions

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There's yet another abortion case at the Supreme Court today. This one tests whether a state can prevent a pregnant woman from receiving what her doctors say is essential medical treatment, including the termination of a pregnancy, if her health but not her life is in great danger. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In 1986, Congress passed the Emergency Medical Treatment and Labor Act, known by the acronym EMTALA. The law provides that hospitals receiving Medicare and Medicaid payments from the federal government - and that's most hospitals - must provide stabilizing care for any patient whose life or health is in serious jeopardy. If the hospital can't provide the care, it's required to provide safe transport to another hospital that can. That was all well and good until the Supreme Court struck down Roe v. Wade, leaving the abortion question to the states. So now a handful of states have adopted laws that make it difficult to provide standard emergency treatment - that includes terminating a pregnancy - if the woman's health but not her life is in imminent danger. Today's case comes from Idaho, where the law is sufficiently strict that the state's leading hospital system says its patients are at real risk. Lindsay Harrison represents St. Luke's Health System, Idaho's only not-for-profit community-owned-and-led hospital system, which operates nine emergency departments in the state.

LINDSAY HARRISON: There are patients who present with conditions that are very serious, that could result in loss of reproductive organs, that could result in permanent disability and that could eventually become life-threatening but that are not at that moment life-threatening. And for physicians at St. Luke's hospitals, there's a conflict between what federal law says they should do, which would allow them to save the patient's organs, and what Idaho allows them to do, which is nothing until that patient's life is at risk.

TOTENBERG: The result, she says, is that patients often have to be transferred by ambulance or helicopter out of state, and arranging that takes time, especially in bad weather.

HARRISON: That delay itself can cause a lot of harm to the patient.

TOTENBERG: The state of Idaho maintains that in the aftermath of the Supreme Court overturning Roe, it is exercising its right to determine how to balance the interests of the mother and the child. The state's new law makes it a felony for doctors to terminate a pregnancy, except to save the life of the mother. John Bursch is one of the lawyers representing Idaho in the Supreme Court. He blames the Biden administration for issuing new guidance on how to carry out the federal law on pregnancy emergencies.

JOHN BURSCH: What's different about EMTALA is that it's part of the Medicare Act, and the Medicare Act is built on a foundation of state law. There's even a federal regulation on this. It says hospitals must assure that their personnel meet applicable standards required by state or local laws. EMTALA does not enforce a national standard of care.

TOTENBERG: The federal government, backed by the American College of Emergency Physicians and the American Hospital Association, counters that the whole purpose of EMTALA was to establish a national baseline for emergency care and to ensure that uninsured patients would not be turned away. The ACLU's Alexa Kolbi-Molinas puts the argument this way.

ALEXA KOLBI-MOLINAS: EMTALA would be meaningless if state laws could simply write exceptions to the emergency stabilization requirement, and that's why this argument that Idaho has the right to carve out certain conditions or treatments from EMTALA is simply incorrect.

TOTENBERG: She contends that the Biden administration's guidance to hospitals after the Supreme Court's abortion decision is the kind of advice that the Centers for Medicare & Medicaid Services routinely put out to remind hospitals of their obligations under the federal emergency care law. Lawyer Bursch disputes that.

BURSCH: EMTALA does not require any specific medical standards. It is built on this foundation of state law, and state law requires that you preserve life whenever it's possible.

TOTENBERG: He notes that EMTALA, in four different places, makes reference to the life of the unborn child. Exercising its rights as a state, he says, Idaho seeks to protect those unborn children, except when the life of the mother and the child are in conflict.

BURSCH: Then the Idaho Defense of Life says, protect the life of the mother, and it's unequivocal about that.

TOTENBERG: Short of that, however, Idaho currently does not allow saving a mother's health, regardless of how serious her condition may be or the likelihood that the failure to act could cause organ failure, seizures and other conditions with lifelong consequences. Again, the ACLU's Kolbi-Molinas.

KOLBI-MOLINAS: And of course, as we know, if you wait too long, until a patient is on the brink of death, it may simply be too late.

TOTENBERG: The Biden administration argues that because the Idaho law only allows abortion to prevent the death of the pregnant woman, it directly conflicts with EMTALA, which allows pregnancy termination to prevent serious harm to the woman's health. Under the Constitution, when there's a conflict between federal and state law, the federal law prevails. Idaho, however, maintains that EMTALA is different because it falls under the Medicare Act, which defers to state regulation of doctors and nurses. Essentially, the state says that when the Supreme Court returned the abortion issue to the states, Idaho was free to draw the line as it has, at banning abortions except to save the life of the mother.

St. Luke's, in its brief, replies that the line is not always that clear-cut and that the Idaho law is exposing doctors and nurses to the risk of criminal prosecution and license suspension. As a result, the hospital system says, doctors and nurses are fleeing the state, creating OB-GYN shortages that are so dire that hospitals are simply shutting down their labor and delivery services and even neonatal intensive care services.

The prospects for that changing are not auspicious. Two lower courts initially blocked the Idaho law from going into effect, on grounds that it conflicted with EMTALA, but in January, the Supreme Court granted Idaho's request and allowed the law to take effect while the Court considers the case. That action is at least a preliminary, though uncertain, indication that a majority of the justices are inclined to agree with Idaho.

Nina Totenberg, NPR News, Washington.

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