Supreme Court Justice Samuel Alito pressed the Biden administration over whether a federal law could be read to mandate abortion while also containing language protecting “unborn children.”
His exchange came during the court’s April 24 oral argument in Moyle v. United States, in which Idaho is attempting to preserve its near-total abortion ban over objections from the federal government.
U.S. Solicitor General Elizabeth Prelogar argued that the state law conflicted with the Emergency Medical Treatment and Labor Act (EMTALA), which mandates hospitals provide care that stabilizes “any individual” with an emergency medical condition.
Passed in 1986, the law defines emergency medical condition as “a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in ... placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy.”
Justice Alito kicked off his questions by noting the lack of discussion about unborn children.
“We’ve now heard—let’s see—an hour and a half of argument on this case, and one potentially very important phrase in EMTALA has hardly been mentioned,” he said.
“Maybe it hasn’t even been mentioned at all. And that is EMTALA’s reference to the woman’s ‘unborn child.’ Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?”
He also noted that the law was enacted by President Ronald Reagan, who opposed abortion.
Abortion ‘Antithetical’ to EMTALA?
At one point, Justice Alito told Ms. Prelogar that the law’s wording indicated abortion would be “antithetical” to care required by EMTALA.“The hospital must stabilize the threat to the unborn child,” he said. “And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty.”
Ms. Prelogar argued that the law still guaranteed women stabilizing care. “The statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger, when her health is in danger,” she said.
“That stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment. And in many of the cases you’re thinking about, there is no possible way to, to stabilize the unborn child because the fetus is sufficiently before viability that it’s inevitable that the pregnancy is going to be lost, but Idaho would deny women treatment in that circumstance.”
She later suggested that Congress set up the law in a way that didn’t consider unborn children as individuals in the same way that women were.
“If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus itself is an individual with an emergency medical condition. But that’s not how Congress structured this,” she said.
“Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her.”
Justice Gorsuch had suggested earlier that the word “individual” covered unborn children in the statute.
“What do we do with EMTALA’s definition of ‘individual’ to include both the woman and, as the statute says, the unborn child?” he asked Josh Turner, an attorney with the Idaho attorney general’s office.
Mr. Turner said that EMTALA didn’t prohibit abortions but “it would be a strange thing for Congress to have regard for the unborn child and yet also be mandating termination of unborn children.”
