This week at SCOTUS: Abortion, housing, Starbucks, and Trump
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In his majority opinion in the Dobbs decision, Justice Samuel Alito seemed to signal his hope that by overturning Roe v. Wade, the Supreme Court was getting out of the business of interpreting abortion laws.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote. “That is what the Constitution and the rule of law demand.” To put a finer point on it, he quoted from a 1992 dissenting opinion by the late Justice Antonin Scalia, who wrote:
“The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
It was a hope that seemed (at best) unlikely at the time, and has only grown less feasible since. When the court wiped away the decades-old status quo established by Roe, it was always going to lead to a patchwork of state abortion laws that would be challenged and find their way back to the courts. Add that to the complex interplay between state laws and federal actors, who also have considerable sway over health care in this country, and additional legal battles were almost guaranteed.
The Supreme Court heard the first of those legal battles last month, when the justices considered arguments in a challenge to the FDA’s regulations regarding mifepristone, the widely used abortion pill. (The justices seemed to lean toward rejecting the lawsuit over concerns about the challengers’ legal standing.)
Today, another abortion battle arrives before the justices. The case will be their first time since Dobbs weighing how far states can go in banning the procedure.
The dispute comes from Idaho, one of the 14 Republican-led states that implemented a near-total ban on abortion after Roe was struck down.
Idaho’s ban is stricter than most of the others on the books. It does include an exception when the life of the mother is at risk, but it is one of only three states — North Dakota and Tennessee are the others — that puts the burden on doctors in such cases to prove there was a risk to the patient’s life, rather than placing the onus on prosecutors to prove there wasn’t. (According to state law, abortions are permissible in Idaho if a “physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”)
Idaho is also in a group of five states — along with Arkansas, Mississippi, North Dakota, and Oklahoma — that only includes an exception to its abortion ban when a woman’s life is endangered. If her health is at risk, but not her survival, an abortion cannot be performed.
It is that second facet of the state’s ban that brings the law to the Supreme Court today, as the Biden administration is arguing that federal law requires hospitals to provide abortions if a woman’s health or life is in jeopardy.
Which law is the Biden administration invoking?
The Emergency Medical Treatment and Active Labor Act (EMTALA), a bipartisan 1986 measure that was signed into law by Ronald Reagan as part of the same legislative package that created COBRA insurance plans for those who lose their jobs.
EMTALA requires all U.S. hospitals that accept Medicare funding — which is basically all of them — to provide care to anyone experiencing a medical emergency. The law was passed to eliminate “patient dumping,” the practice of hospitals refusing to treat patients who were uninsured or unable to pay for care. Under EMTALA, anyone who urgently needs care in the U.S. is able to walk into an emergency room and expect treatment.
Here’s the exact words of the statute:
If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or
(B) for transfer of the individual to another medical facility in accordance with subsection (c).
This language “protects patients not only from imminent death but also from emergencies that seriously threaten their health,” the Biden administration argued in a brief. By banning abortion, which could be the treatment “required to stabilize” a patient’s condition in some health-threatening emergencies, “Idaho law thus criminalizes care required by federal law,” the administration added.
In response, Idaho has accused Biden of attempting to abuse EMTALA in order to “create a country-wide abortion enclave in hospital emergency rooms that accept Medicare funding.” The state’s lawyers write:
This bureaucratic mandate finds no support in EMTALA’s text. That Reagan-era law prohibits emergency-room-patient dumping and operates within the menu of lawful medical treatments in a particular state, requiring hospitals to offer stabilizing care from that menu. It neither authorizes nor requires hospitals to offer care that violates state law.
EMTALA does say that it pre-empts state laws that “directly conflicts with a requirement of this section,” but Idaho argues that its law does nothing to contradict EMTALA. The 1986 law does not explicitly name abortion as a required treatment, they note, allowing hospitals to make that interpretation for themselves. In addition, Idaho argues, the laws also includes a requirement that hospitals care for unborn children, which they say their abortion ban fulfills.
The district and appeals courts in the case sided with the Biden administration. The Supreme Court’s ruling, which is expected by the end of June, will have consequences beyond Idaho, either requiring the five abortion-banning states without exceptions for the health of the mother to adopt one — or allowing them to carry on. The decision could also offer broader clarity on when abortion is permissible in states that ban the procedure; even in many states with health exceptions, they are rarely granted because hospitals fear prosecution.
The court will also be closely watched for how it responds to Idaho’s arguments about EMTALA requiring care for unborn children. If the justices side with Idaho and use the language of fetal personhood in their opinion — which became a hot-button issue after an Alabama Supreme Court decision granting legal personhood to frozen embryos — Idaho v. United States could open the door for even more legal disputes to come.
This is not the only high-profile case to land before the Supreme Court this week.
Tomorrow, the court will hear arguments in Trump v. United States, the former president’s claim that he has presidential immunity and cannot be criminally prosecuted for attempting to overturn the 2020 election.
Earlier in the week, the justices heard disputes about whether an Oregon city could make it a crime for homeless people to sleep outside (they seemed to lean towards the city), whether Starbucks illegally interfered with a union drive (they seemed to lean towards Starbucks), and whether a woman’s constitutional rights were violated when the government denied a visa to her husband, in part because of his tattoos (they seemed to lean towards the government).
More news to know.
✅ The Senate approved the $95 billion House-passed foreign aid package in a sweeping 79-18 vote on Tuesday. The bill was supported by 48 Democrats and 31 Republicans, including many who opposed a similar package in February. 3 Democrats and 15 Republicans voted against it. The package now goes to President Biden, who is expected to sign it, unlocking long-sought aid for Ukraine and Israel, while also paving the way for TikTok to be either sold or banned in the U.S.
🤫 Donald Trump’s lawyer sparred with the judge in his New York criminal case over whether Trump violated a gag order preventing him from speaking about potential witnesses in the case. “You’re losing all credibility with the court,” Judge Juan Merchan told the lawyer.
🗳️ Rep. Summer Lee (D-PA), a member of “The Squad,” easily beat back a challenge on Tuesday from a primary opponent who emphasized her criticism of Israel. Lee won 60.6% of the vote, while the challenger took 39.4%. Meanwhile, in Pennsylvania’s Republican presidential primary, Nikki Haley took more than 16% of the vote — despite being out of the race for months — a worrying sign for Trump in a top battleground state.
💼 The Federal Trade Commission has banned non-compete agreements, which companies use to block their employees from joining competing companies within a certain period of time. The rule, which will likely face court challenges, is set to take effect in 120 days.
🗞️ New York lawmakers approved $90 million in first-of-their kind tax credits that will go to eligible news outlets to subsidize the hiring of local journalists. “It’s the largest sum any state has devoted to local news,” Axios reports.
📱 Trump is trying to use the bipartisan TikTok bill to win Gen Z voters. “Just so everyone knows, especially the young people, Crooked Joe Biden is responsible for banning TikTok,” Trump wrote on Truth Social. The legislation was supported by most Democratic and Republican lawmakers; Trump previously attempted to ban TikTok during his presidency.
🔎 Donald Trump Jr. and Eric Trump have emerged as their father’s unofficial “loyalty czars,” per Axios, vetting potential administration officials to ensure they’re MAGA-aligned.
😬 House Oversight Committee chairman James Comer (R-KY) has told colleagues that he’s ready to be “done with” his Biden impeachment inquiry, per CNN.
🇦🇷 Sen. Mike Lee (R-UT) wants Argentina’s right-wing president, Javier Milei, to be the next Republican leader in the Senate.
❌ Former Rep. George Santos (R-NY) has ended his short-lived independent campaign to return to Congress.
The day ahead.
— President Biden will deliver remarks at an event hosted by North America’s Building Trade Union (NABTU), during which the union is set to endorse his re-election campaign.
— Vice President Harris will travel to New York City to record an interview for “The Drew Barrymore Show,” which will air on Monday.
— The House and Senate are both on recess.
— The Supreme Court will hear oral arguments in Idaho v. United States, the case on emergency abortions.
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