Up next for Supreme Court on abortion: Idaho

Since the Supreme Court overturned Roe v. Wade in June 2022, 21 states have enacted laws that strictly limit abortion.

Next week, justices will hear arguments over the first and among the most restrictive of those new laws. Idaho’s statute calls for a near-complete ban on abortion and prohibits anyone from performing or assisting one except when the pregnancy is ectopic or molar; a result of rape or incest; or a risk to the life of the mother.

The U.S. Department of Justice argues those restrictions conflict with a 1986 federal law requiring hospitals that participate in Medicare to provide stabilizing treatment to emergency room patients regardless of their ability to pay. Both the federal District Court and U.S. Court of Appeals in Idaho sided with the federal government and had blocked the state ban from going into effect. The Supreme Court lifted the injunction in January when it agreed to hear the case.

Several other abortion cases are moving through federal and state courts. Notably, Arizona’s top court upheld a Civil War-era law last week criminalizing abortion in all circumstances except to save a pregnant woman’s life.

The Gazette spoke with I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at HLS, about the legal landscape after the Dobbs v. Jackson Women’s Health Organization ruling that overturned Roe and what a decision for Idaho might mean for other states. The interview has been edited for clarity and length.

---

There has been a flurry of abortion-related legal challenges since the overturning of Roe. Can you describe some recent developments?

On April 1, the Florida Supreme Court upheld the state’s 15-week ban, which, because of the way the law is written, means the state’s six-week ban will go into effect in 30 days. The Court also allowed a ballot initiative to go forward, so Florida voters will get to vote on abortion.

Last week, the Arizona State Supreme Court cleared an 1864 abortion law in the state to go into effect — a law that predates Arizona’s statehood that prohibits abortion without exceptions for rape or incest. An attempt by Democrats in Arizona’s legislature to repeal that 1864 law failed.

The state’s attorney general, Kris Mayes, and some county attorneys have said they will not prosecute abortion cases under the law, but it is not clear whether providers will be willing to perform abortions even with those assurances.

Moreover, such assurances can change with changes in who is in charge. There is a proposed ballot initiative in Arizona that would enshrine some abortion rights protections in Arizona’s state constitution, so, as in Florida, voters will be able to have their say.

In terms of what’s before the Supreme Court or making its way to the Supreme Court, I’d say there are three main cases to keep an eye on.

One is the mifepristone litigation, where oral argument happened on March 26, which is about whether FDA appropriately altered the drug’s Risk Evaluation and Mitigation Strategies in 2016 and 2021. REMS are potential restrictions on the use of that drug that has been approved. That case is really about medical abortion.

We’ve got this case in Idaho, which is about states, in the wake of Dobbs, that have more narrowly limited their abortion laws such that there are now questions about emergencies and questions about exceptions for life and health of the pregnant person. This case presents that question squarely.

And then, floating in the background, but not yet squarely before the U.S. Supreme Court, is the Comstock Act. The question the Court may eventually have to answer is whether this very old act, more than 100 years old, restricts sending in the mail drugs used for abortion or even tools that could be used for surgical abortion.

We are seeing all these cases now in part because while these questions were always in theory there, there was a constitutional protection of abortion that restricted states from going below a certain minimum, such that very few such restrictive measures were active and had legal questions that needed to be resolved.

But now, in the wake of Dobbs, we’ve got states that have more or less completely limited abortion except under very narrow circumstances. What’s so interesting about the Idaho case is that the Emergency Medical Treatment and Active Labor Act is a general law about emergency treatment and stabilization. And so, we’re talking about how it intersects with what Idaho and other states may have done.

What’s the legal question at issue in this Idaho case?

Part of what makes the case complicated is the parties have slightly different views about what the state of play is. The federal government puts the question presented as “whether EMTALA pre-empts Idaho law in the narrow but important circumstance where terminating a pregnancy is required to stabilize an emergency medical condition that would otherwise threaten serious harm to pregnant women’s health, but the state prohibits an emergency room physician from providing that care.”

Idaho frames it as “whether EMTALA pre-empts state abortion regulations and requires hospitals to perform abortions disallowed by state law.”

One of the pieces of wrangling that has occurred throughout litigation is exactly what is prohibited by the Idaho Defense of Life Act. Questions about pregnancy termination related to ectopic pregnancies, pre-eclampsia, and stuff like that. So, the parties, I don’t think, are in complete agreement over the question about what the act prohibits or doesn’t prohibit.

What is there for the Supreme Court to consider? Doesn’t the Constitution already say that when federal law conflicts with state law, federal law prevails?

Exactly right. Under the Supremacy Clause of the Constitution, federal law trumps state law where they conflict. But what it means for the laws to conflict is a nuanced question. So, the question is: When does federal law pre-empt state law? There are multiple types of pre-emption arguably raised in this case — express, implied, and obstacle. The key question is whether any of those apply, which, in turn, depends on understanding what EMTALA requires.

On Idaho’s side of the case, their argument is there isn’t a conflict with EMTALA because EMTALA doesn’t reach this particular question. And on the other side, the federal government argues it definitely does apply here. So, part of this is an interpretation of what EMTALA does and does not require.

Has EMTALA been challenged before in other contexts?

There have been some EMTALA cases. There’s a famous case called the Baby K case from many years ago. Baby K was a Fourth Circuit case from 1994 about a baby born with anencephaly — missing a major part of the brain that is necessary for conscious thought — and whether a hospital could decline to provide a ventilator to the newborn if the newborn came to the ER.

There was a Fifth Circuit case from 1991, Burditt v. U.S. Department of Health and Human Services, unsuccessfully challenging EMTALA as unconstitutional. In the Supreme Court certainly, EMTALA cases been relatively few and far between.

The justices referenced EMTALA quite a bit during oral arguments in the recent mifepristone case, FDA v. Alliance for Hippocratic Medicine. Why do you think that is?

There was a lot of shadowboxing around the Idaho case in the mifepristone oral argument.

In particular, two things to highlight: One is this question about so-called “conscience clauses” and whether EMTALA could ever overcome legal protections for conscience and thus, require a physician to perform an abortion against her or his conscience.

Solicitor General Elizabeth Prelogar gave, I think, the correct answer, which is that EMTALA obligations sit on a hospital, not on a physician. And typically, hospitals have systems in place that if they have a physician who is conscientiously objecting to abortion and protections for that under law, it’s up to the hospital to find a substitute, which is, I think, a correct statement of the law, but one I’m sure there’s going to be some pushback on.

Second, there was some sniping at the mifepristone argument about whether the government has changed its position on the conscience question and whether they’ve changed their position and given different answers to this question at different stages of the litigation.

On the flip side, in the Idaho case, the federal government argues the state of Idaho keeps changing their position about what their theory of pre-emption is. So, I think there’ll be some nasty questioning — “has this always been your position, has your position changed” and the like. I don’t think it’ll actually make a difference to the outcome, but that’s something that I expect that we’ll hear at argument.

A Supreme Court decision in Idaho’s favor could impact people in many other states. How might that unfold?

I wouldn’t say every state because many states have robust protections. In those states there may be some fairly robust protections regarding emergency exceptions for the health and life of the mother.

In a state like Massachusetts, we’re not going to get the conflict we saw in this case. Elsewhere it looks different. There was a parallel EMTALA case in Texas, and Texas won that one. So currently, the court in Texas has allowed Texas’s law to go into effect.

The Solicitor General, in her brief in the Idaho case, had a footnote listing the states they think this is going to be most relevant to. Texas is certainly one of them. Footnote 11 in the Solicitor General’s briefs says seven states, including Idaho, have laws that lack a health exception. They name Arizona, Arkansas, Mississippi, Oklahoma, South Dakota, and Wisconsin. But it says several of those laws are in flux. So at least in those seven states directly relevant.

But there are some other states that have restrictions on health exceptions for abortion that are not as firm as the ones in Idaho but are narrower than what the federal government understands to be required by EMTALA, where this decision will also be relevant. Moreover, there may be some states that might see a win for Idaho in this case and learn and rewrite their statute to be narrower than it is now.

Does the federal government have any recourse if Idaho prevails? Could the government withhold Medicare reimbursements to those states, for example?

I think the answer is probably no, in part because the Supreme Court is giving the definitive reading about what EMTALA means.

If the government, under EMTALA, threatened to remove Medicare and Medicaid funding from the hospitals in a state that allegedly violated EMTALA, they would now say, “We’re not violating EMTALA. See the decision in this case.”

What would have to happen would be congressional action to change the language if Idaho wins. In such legislation, Congress could just say EMTALA requires that the health of the mother be considered in a particular way as a requirement of the statute.

Congress could also pass a freestanding statute that said the same thing. This sometimes happens — the Supreme Court gives an interpretation of a statute; Congress doesn’t like the interpretation; and Congress changes the statute.

In theory, that could happen here. In reality, the politics would require Democrats to have a majority in both houses and unless the filibuster is going to go away, would require a filibuster-proof majority in the Senate, and that’s quite unlikely.

The other thing that’s possible is, and this is going to be even more unlikely, is forget EMTALA. If there’s federal protection provided to abortion in general [through legislation], some federal backstop that says, “States have power to do some things, but not this. This is too far,” then the federal government could also include more protections for health and life of the mother exceptions.

One more thing that’s in play here: the interpretation of what does Idaho state law mean or what does Texas state law mean in terms of the breadth of the exceptions is typically not for the U.S. Supreme Court to decide because they’ve said when a decision rests on an independent adequate state ground, the Supreme Court will not review the case.

But there is a question under state law, what does the exception mean. Texas right now is having litigation in the Texas state courts about what its emergency exception for abortion covers. So, another possibility is the people of Idaho change their law, or the Idaho Supreme Court interprets the law in a way that is more friendly to abortion access. Those are also possibilities. Though as the failure of legislation to protect abortion in Arizona I mentioned before shows, in many states changing abortion law via ordinary legislation will be an uphill battle.