Supreme Court to hear case about emergency abortion care

Abortion rights advocates and anti-abortion opponents clash outside the US Supreme Court on April 24 in Washington, DC.  Andrew Harnik/Getty Images

Reproductive rights and anti-abortion activists clashed in front of the Supreme Court on Wednesday just before arguments are slated to start in Moyle v. United States.

Justices are set to hear arguments regarding a law from the 1980s protecting a person’s right to an abortion if they have a life-threatening condition.

The two groups shouted phrases, including "abortion is health care" and "abortion is oppression," while standing shoulder-to-shoulder, highlighting the tense divisions surrounding the issue.

No significant physical altercation has been seen, but they were shouting in each others' faces at times.

United States Supreme Court (front row L-R) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice of the United States John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row L-R) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson pose for their official portrait at the East Conference Room of the Supreme Court building on October 7, 2022 in Washington, DC. Alex Wong/Getty Images

The Supreme Court will soon hear arguments on whether Idaho’s abortion ban can be enforced in medical emergencies. Here are the key players in court today:

The justices:

Arguing in defense of the state abortion ban:

Arguing on behalf of the Biden administration: 

Order of proceedings: Turner, representing Idaho, is expected to be up first for arguments. Then, Prelogar will respond for the Biden administration in a presentation. Finally, Turner will return to the lectern for a five-minute rebuttal. 

A law called the Emergency Medical Treatment and Active Labor Act, also known as EMTALA, is at the heart of a Supreme Court case that will go before justices on Wednesday. It became law in 1986 after studies showed that many hospitals were trying to save money by engaging in “patient dumping” or transferring a patient — often uninsured or a member of a minority community — to a public hospital without first providing appropriate care to stabilize them. 

A study at Cook County Hospital at the time the law passed found that “dumped” patients were twice as likely to die as those who were treated at the hospital where they initially sought care. About a quarter of patients were transferred in what was considered an unstable condition. 

EMTALA required all US hospitals that received Medicare money — essentially nearly all of them — to screen everyone who came to their emergency rooms to determine whether the person had an emergency medical condition. The law then requires hospitals, to the best of their ability, to stabilize anyone with an emergency medical condition or transfer them to another facility that has that capacity. The hospitals must also treat these patients “until the emergency medical condition is resolved or stabilized.” 

Why this matters to the Idaho case: In 1989, after reports that some hospitals were refusing to care for uninsured women in labor, Congress expanded EMTALA to specifically say how it included people who were pregnant and having contractions. In 2021, the Biden administration released the Reinforcement of EMTALA Obligation, which says the doctor’s duty to provide stabilizing treatment “preempts any directly conflicting state law or mandated that might otherwise prohibit or prevent such treatment” although it did not specify whether an abortion has to be provided.

In July 2022, the Biden administration’s guidance clarified that EMTALA includes the need to perform stabilization abortion care if it is medically necessary to treat an emergency medical condition.

Here's a look at where abortion access stands in Idaho and across other states:

Pregnancy complications are the fifth most common reason why women age 15 to 64 seek care at emergency departments in the United States, according to data published by the US Centers for Disease Control and Prevention’s National Center for Health Statistics. In 2021, pregnancy complications led to about two million emergency department visits, the CDC estimates.  

Warning signs of an emergency during pregnancy can include bleeding, chest pain and dizziness. There is not sufficient data to understand how many of these emergencies require an induced termination, or abortion.  

However, experts say that abortion bans may increase the number of pregnancy-related emergencies and that restricting the option to have an abortion in emergencies can threaten the health and livelihood of the pregnant person. 

“Abortion care is extremely safe, safer than continuing a pregnancy to term,” she said. 

More context: One study from 2015 found that only 0.23% of abortions — including medication and procedural cases — resulted in a major complication that required hospital admission, surgery or blood transfusion. Meanwhile, a 2012 study found that childbirth caused severe complications five times more often, or 1.3% of the time.

Maternal mortality in the US has increased sharply in recent years, rising from about 20 deaths for every 100,000 live births in 2020 to nearly 33 deaths for every 100,000 live births, according to a CDC report published last year. The latest abortion surveillance data from the CDC suggests that there was less than one death for every 100,000 legal abortions in the US. 

Joe Biden speaks at a reproductive freedom event at Hillsborough Community College in Tampa, Florida on April 23. Paul Hennessy/Anadolu/Getty Images

President Joe Biden on Tuesday launched one of his most forceful attacks of the 2024 campaign against presumptive Republican nominee Donald Trump – who he said was responsible for the “nightmare” caused by the overturning of Roe v Wade.

“For 50 years the court ruled that it was a fundamental constitutional right to privacy,” Biden said at a campaign stop.

Democrats have seized on abortion ahead of November, hoping it could spur moderate voters – particularly women – to turn out in droves against Trump by tying the abortion bans directly to him. Biden’s campaign often cites Democratic successes in the 2022 midterms and off-year elections since Roe was overturned as examples of the issue driving voters to the polls.

Biden also poked fun at the former president for describing “the Dobbs decision as a miracle.”

“Maybe it’s coming from that Bible he’s trying to sell,” Biden joked. “I almost wanted to buy one to see what the hell’s in it."

Biden added: "Folks, it was no miracle — it was a political deal to get rid of Roe – a deal, a political deal he made with the evangelical base of the Republican Party.”

Read more on Biden and presidential abortion politics.

There are several circumstances in which an abortion may be the only option to protect the health and life of the pregnant person, according to doctors, who add this is true “without question.” 

The American College of Obstetricians and Gynecologists, a professional organization that represents the majority of practitioners in the United States, said in an amicus brief the majority of emergency providers treat pregnant patients in virtually every shift. It said in some circumstances those practitioners must treat dangerous and serious conditions that may require an abortion to protect the patient’s life or health. 

Pregnancy can be dangerous, particularly in the United States, which has the highest rate of maternal mortality in the developed world.

The question of when an abortion is medically indicated is “really broad and extends across medical specialties,” according to the American Medical Association. 

Dangerous conditions can include when the amniotic sac ruptures early, presenting a major risk for infection, sepsis or placental abruption when the placenta separates from the inner wall of the uterus, which can result in uncontrollable bleeding and may lead to cardiac arrest, kidney failure or miscarriage.

About 10% to 20% of pregnancies end in miscarriage and many don’t require medical intervention, but some may require treatment using the same procedure used in an abortion. Miscarriages can put someone’s life at risk because of serious blood loss or infection if the miscarriage is not complete.

Arguing for Idaho is Josh Turner, a lawyer with Attorney General Raúl Labrador’s office who is making his debut at the Supreme Court.

Turner, whose title is chief of constitutional litigation and policy, joined Labrador’s office last year during a shakeup that involved several senior attorneys. He was previously a business litigation attorney at Faegre Drinker Biddle & Reath.

Turner told Law360 recently that there was “a lot of clamoring” to represent the state before the Supreme Court but that he was “thankful that the attorney general has confidence in me to deliver the argument and represent the people of Idaho.”

Elizabeth Prelogar appears before a Senate Committee on the Judiciary for her nomination hearing to be Solicitor General of the United States, in the Dirksen Senate Office Building in Washington, DC, on Tuesday, September 14, 2021. Rod Lamkey/CNP/Sipa USA

For the fourth time since she became the federal government’s top Supreme Court advocate, Solicitor General Elizabeth Prelogar is arguing an abortion-related case.

The dispute before the high court on Wednesday, about whether federal mandates for hospitals override strict state abortion bans in medical emergencies, shows how legal fights over abortion rights did not cease when the conservative majority ended a constitutional right to an abortion in 2022.

In the first two abortion-related cases Prelogar argued, the conservative majority rejected her calls that abortion rights be protected.

But she has eked out wins on other issues where the Biden administration was seemingly at odds with the court’s conservative proclivities, including in tussles over immigration policy and voting rights.

Prelogar, born in 1980, is a former Supreme Court clerk herself, having worked for both the late Justice Ruth Bader Ginsburg and Justice Elena Kagan. The Senate’s 53-36 vote confirming her as solicitor general made her the second women ever to serve in the role, with Prelogar following in the footsteps of Kagan, the solicitor general during the Obama administration.

An Idaho native, Prelogar attended Emory University and then Harvard Law School. She also clerked for her current boss, Attorney General Merrick Garland, when he was a DC Circuit judge, before her Supreme Court clerkships. She went on to litigate Supreme Court cases for private firms and worked on special counsel Robert Mueller’s investigation.

Read more about Elizabeth Prelogar's career here.