But it’s not yet clear they’ve settled on a rationale for doing so.
A federal law requires most US hospitals to provide an abortion to patients experiencing a medical emergency if an abortion is the proper medical treatment for that emergency. This law is unambiguous, and it applies even in red states with strict abortion bans that prohibit the procedure even when necessary to save a patient’s life or protect their health.
Nevertheless, the Supreme Court spent Wednesday morning discussing whether to write a new exception into this federal law, which would permit states to ban abortions even when a patient will die if they do not receive one.
Broadly speaking, the Court seemed to divide into three camps during Wednesday’s argument in Moyle v. United States. The Court’s three Democrats, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, all argued — quite forcefully at times — that the Emergency Medical Treatment and Labor Act (EMTALA) means what it says and thus nearly all hospitals must provide emergency abortions.
Meanwhile, the Court’s right flank — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch — left no doubt that they will do whatever it takes to permit states to ban medically necessary abortions.
That left three of the Court’s Republicans, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, in the middle. Kavanaugh and Barrett both asked questions that very much suggest they want states to be able to ban medically necessary abortions. But they also appeared to recognize, at times, that the arguments supporting such an outcome are far from airtight.
Still, federal law is crystal clear that states cannot outright ban medically necessary abortions. So there is a chance that two of the Court’s Republicans will reluctantly conclude that they are bound by the law’s clear text. Moyle should be an exceptionally easy case
EMTALA requires hospital emergency rooms that accept Medicare funding to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” Though the law does not specifically mention abortion, it is written in capacious terms. So, if a patient has an “emergency medical condition” and the proper treatment to stabilize that condition is an abortion, the hospital must provide an abortion.
Though the law only applies to Medicare-funded hospitals, that’s nearly all hospitals because Medicare provides health coverage to Americans over the age of 65.
EMTALA conflicts with an Idaho law that bans abortions in nearly all circumstances.
