The Emergency Medical Treatment and Labor Act, or EMTALA, says certain hospitals have to provide stabilizing care to patients. Until the Dobbs decision in 2022, that care included abortion if necessary. After Dobbs, though, states with strict abortion laws make it difficult if not impossible to abide by EMTALA. Idaho is one such state, the United States sued, and that case made its way to the Supreme Court. In June of 2024, however, the Court said it made a mistake. It never should have taken the case. So what happened? Hannah is inside the courtroom, Nick's waiting outside.
Listen to our episodes on federalism, Roe v Wade and precedent for some extra context on what we talk about here. Finally, listen to Hannah's episode on what it was like to spend a day in the Supreme Court.
Transcript
Hannah McCarthy: A note to listeners. In this episode, we're discussing legal issues with contextual references to sexual assault and other content that might not be appropriate for all. Just a heads up. All right, here we go.
Nick Capodice: Sounds like Chameleon. It is Chameleon. I love this song. Herbie Hancock made this famous on his album Headhunter. You know, Nick, maybe. Have you ever considered just reporting instead of just talking about fun little trivia facts.
Hannah McCarthy: On April [00:00:30] 24th, 2024, when Civics 101 was in Washington, D.C., Nick and I went to the Supreme Court. I had acquired a press pass to go inside and hear the arguments.
Archival: We will hear argument this morning in case 23 726, Moyle versus United States and the consolidated case. Mr. Turner.
Hannah McCarthy: And Nick stayed outside.
Archival: What do we want? When do we want it? Now. What do we want.
Hannah McCarthy: And this [00:01:00] case? And actually, it's two consolidated cases, Idaho and Moyle et al v United States. I'm going to refer to it as Moyle. The court was looking at a strict abortion restriction in Idaho, and trying to figure out whether or not it conflicted with a federal law. And on June 27th, 2024, the court announced its opinion, and we will get into that in detail later.
Nick Capodice: By the by, the opinion was known. A day before it was released. The court had accidentally posted it [00:01:30] to its own website. Sort of a self-inflicted leak. And there are a lot of pieces to this case. It is tied to the recent Dobbs decision that overturned Roe v Wade. It's tied to questions about federal power versus state power, and it's tied to something called Impala, the Emergency Medical Treatment and Labor Act.
Hannah McCarthy: All right, let's do it. You're listening to Civics 101. By the way, I am Hannah McCarthy.
Nick Capodice: I'm Nick Capodice.
Hannah McCarthy: And today we are talking about abortion. EMTALA [00:02:00] and Moyle v US.
Nick Capodice: I'd like to start with like a really 101 facts of the case here. You know who is Moyle? What is EMTALA? What are we talking about here?
Hannah McCarthy: Sure, I'll do EMTALA first. Again. It stands for the Emergency Medical Treatment and Labor Act. It was passed by Congress and signed into law by Ronald Reagan in 1986. Now people refer to it as the patient Antidumping law. Basically, in the mid 80s there were reports [00:02:30] of hospital emergency departments refusing to treat people who were uninsured, weren't U.S. citizens, or who didn't have the money to cover hospital costs. The law and I'm going broad here, says that if a hospital participates in Medicare, as in if they get the federal health insurance plan, if they receive federal funds and nearly all hospitals do. That hospital has to provide emergency care to someone, regardless of their ability to pay [00:03:00] the bill. Are you with me so far?
Nick Capodice: I think so. It's like if you show up to an emergency room and you're bleeding from a head wound, say they can't turn you away, right?
Hannah McCarthy: They cannot turn you away. They have to first take a look at you, give you a medical screening, and secondly, if that medical screening tells a doctor that you're experiencing an emergency medical condition, they have to provide stabilizing care. If that hospital does not have the staff or the facilities for that care, they have to transfer you somewhere that does. [00:03:30]
Nick Capodice: Now, what counts as an emergency medical condition?
Hannah McCarthy: This is an important question. So EMTALA says acute symptoms of sufficient severity, including pain wherein if that person did not get immediate treatment, their health or the health of their unborn child would be in serious jeopardy. Uh, or their bodily functions or their organs would be impaired or experience dysfunction.
Nick Capodice: All right. So EMTALA is specifically [00:04:00] about health. It doesn't say you must give this person the necessary care if and only if they are going to die if you don't.
Hannah McCarthy: Yeah, and I know where you're going with this because as we have mentioned, we are talking about abortion here. Idaho's abortion law is specific to saving the life of the mother. The state also allows for abortions in the case of rape and incest. They passed the law in 2020, and then it went into effect in 2022 after the Dobbs v Jackson [00:04:30] decision overturned Roe v Wade and the constitutional right to abortion. The criminal penalties for anyone who performs or attempts to perform an abortion are up to five years in prison, and for doctors, their first offense will mean a license suspension and their second means they lose their license.
Nick Capodice: So there's a federal law that mandates stabilizing care. Which, and correct me if I'm wrong here, could very well be abortion to protect someone's health. Correct. And then there's [00:05:00] a state law that bans most abortions. But in the case of medical emergencies, it allows them to protect someone's life.
Hannah McCarthy: Yeah. Long and short of it.
Nick Capodice: So this is a federalism issue, Hannah.
Hannah McCarthy: It sure is. Nick. And what do we know about federalism? You remember the three helpful principles. We've got a whole episode on this one, folks.
Nick Capodice: Okay, I know that federal law trumps state law. That is the Supremacy Clause in the Constitution. If a state law is in conflict [00:05:30] with a federal law, federal wins. But then I think that states are allowed to push back on that.
Hannah McCarthy: They are totally allowed to push back. And those are principles two and three. The US recognizes that state governments are important, that they have a degree of autonomy, and that there are plenty of places where the federal government does not or cannot regulate what states do. So when a state, for example, thinks a federal law is unconstitutional and does not want to follow it, [00:06:00] that is allowed. But and this is an important but unless the court system agrees with that state that a federal law is unconstitutional, that state cannot stop the federal government from trying to enforce that federal law. Nor can they stop the government from prosecuting people who violate it.
Nick Capodice: And I know that the federal government does not always choose to enforce federal law. But with the Moyle case, the federal government did.
Hannah McCarthy: The federal [00:06:30] government did.
Archival: Almost immediately, the Department of Justice filed a lawsuit because that exception, the life of the mother, wasn't enough and it went against EMTALA. Emergency care is emergency care, and a patient should not be denied care because, well, they aren't dying yet. A federal judge immediately put an injunction in place so that wouldn't be the case.
Hannah McCarthy: And then Mike Moyle, the Republican speaker of the House in Idaho, petitioned the Supreme Court to take up the case.
Archival: That injunction was suspended [00:07:00] by a three judge panel of the Ninth Circuit Court of Appeals said Idaho could enforce all of its abortion law while the lawsuit worked its way through the courts, which is what it is doing now, because in January, the Supreme Court agreed to hear arguments in the United States versus Idaho and Moyle.
Nick Capodice: So that's how we got Moyle v US.
Hannah McCarthy: That is how we got it.
Nick Capodice: So at that moment, Hannah, when you and I were at the Supreme Court, that ban was still in place.
Hannah McCarthy: It was. [00:07:30]
Nick Capodice: All right. So let's move on to that day when you and I were there in person.
Hannah McCarthy: Oh, yeah. And if anyone wants to hear about what it was like to spend a day in the Supreme Court, there's a link to that episode in the show. Notes. Um, but, Nick, first, what was it like outside?
Nick Capodice: It was very, very noisy.
Nick Capodice: A lot of people are protesting. There are about 5 or 6 people who seem to be, uh, in the pro-life camp and maybe like 1 to 200 [00:08:00] in the what we now refer to as the pro-choice camp. There are two competing podiums, one on the left and one on the right with speakers, and they're shouting at the same time.
Archival: Typical pro-choice person. Eight out of ten people names. No they're not.
Archival: Eight. Eight out of ten. No, no, not in healthcare. That's not true. We want women to win.
Archival: No you don't. We want to live in a free democracy. Abortion kills. Kills. Planned Parenthood's founder. [00:08:30] Do you support Margaret Sanger? Margaret Sanger was a racist.
Nick Capodice: And real quick, before anybody calls me out, I did make a linguistic error while taping in the field there.
Hannah McCarthy: Um, you mean you said pro-choice and pro-life?
Nick Capodice: Yeah, I did. Look, I understand if people get frustrated when words we are supposed to use change, sometimes seemingly overnight, the sheer amount of expressions I've been told aren't the appropriate ones over the last six years is staggering, [00:09:00] but I always come around to understanding that words do matter and the reasoning is right. Words evolve and so do we. Many news agencies no longer say pro-life and pro-choice because they're recognized as politically charged, advocacy based terms like slogans each side uses to describe themselves. So instead we in the news world say what these sides truly are. Abortion rights supporters and abortion rights [00:09:30] opponents.
Hannah McCarthy: So there were people on both sides of the barricades. Did you talk to anyone who was there?
Nick Capodice: I did, I'm going to share three short interviews with you today. First, I spoke to Jessica.
Jessica Baskerville: My name is Jessica Baskerville. Spelled b a s k e r v I l l e. And I work with the National Women's Law Center. I am a media associate. I'm not even sure I'm going to spit out my gum. No, I don't, I don't, you know, chomp into your microphone.
Nick Capodice: I like a good microphone. Chomp. [00:10:00] We like a lot of good scene tape. Okay.
Jessica Baskerville: I don't know, gum is part of the scene but is now. All right. So what are we going to be talking about?
Nick Capodice: I wanted to ask you from sort of. So our show is about systems and civics, right? It's schoolhouse Rock for adults.
Jessica Baskerville: I love it.
Nick Capodice: From a civics constitutional perspective. What do you guys think is going on in there today?
Jessica Baskerville: Learning a lot about like the 14th amendment and how it has been at one point stretched to protect reproductive freedom, but it is now being used to restrict reproductive freedom based on how [00:10:30] justices have interpreted it over the years. And now it's it's being interpreted differently. Differently. Um, and at that, there is the expense of so many things reproductive freedom, just general bodily autonomy, um, racial protections, interracial marriage. There's so many things because of how this amendment has been interpreted by different courts. Um, yeah. I think that there are so many things and interference of how the government well, not even [00:11:00] the government, how the judicial branch is choosing to, um, police people's bodies and decide what health care is.
Hannah McCarthy: So what Jessica is talking about here, at least to my ear, um, is that the Supreme Court in Roe v Wade said that the 14th Amendment's implied right to privacy protected abortion as a constitutional right, and that in Planned Parenthood v Casey, the court said that [00:11:30] the right to abortion stems from the 14th Amendment's right to liberty. And then in Dobbs v Jackson Womens Health Organization, uh, the court said, actually, the Constitution doesn't mention abortion. And the reasoning in Roe and Casey was bad. So perhaps unsurprisingly, the 14th amendment didn't show up in oral arguments or in the court's opinions or dissents.
Nick Capodice: And that's because Dobbs pretty much just took it out of the abortion conversation.
Hannah McCarthy: I'm assuming here. But yeah, I mean, given Dobbs, that argument would not have been much [00:12:00] help in Moyle.
Nick Capodice: Do you want to do an interview?
Felipe Avila: I'm happy to.
Nick Capodice: All right, tell me, who are you and what are you doing here today?
Felipe Avila: My name is Felipe Avila. I'm director of communications with the National Association of Pro-Life nurses, and we are here to stand up for all of the health care providers throughout the country who believe that their conscience protection should be protected. We. We are deeply concerned that the Biden administration is weaponizing and EMTALA to essentially force providers to perform abortions. But essentially what [00:12:30] this case is about is a 1980s era law called EMTALA that essentially was introduced by the government to make sure that patients that are low income or who do not have insurance, that they are able to receive emergency medical care. But what the Biden administration is now looking to do is expand EMTALA to force health care providers to turn the emergency room into an abortion facility, and we are deeply opposed to that.
Nick Capodice: Uh, do you think if you could have a conversation with [00:13:00] anybody on the other side of the of the other side of the barriers there? Uh, do you think there's any common ground that you two could come together with?
Felipe Avila: I think the biggest common ground is that we both care about patients, and we both care about our patients that we serve and that we represent. And I would say where we differ is that they believe incorrectly that we are risking women's health. But I would say the opposite. We are deeply concerned that EMTALA is forcing professional health care professionals to perform abortions [00:13:30] that are not medically indicated.
Nick Capodice: And what's that pin you have there?
Felipe Avila: So this is the caduceus, and this is just the universal symbol for health care. And we believe that abortion is not health care. And we are here to say that.
Hannah McCarthy: Okay. Got it. Um, so this is really interesting. Felipe has got some serious concerns here that I think I can address his point about conscience, conscientious objection by a medical [00:14:00] practitioner that does have federal protection, at least when it comes to facilities or doctors that receive federal funds. And the federal funds. Thing is, in part, what makes EMTALA enforceable.
Nick Capodice: Because they participate in Medicare.
Hannah McCarthy: Yeah. And the lawyer for the United States, actually, in these oral arguments, argued that conscience objections are permitted under EMTALA.
Nick Capodice: So, like, what if an entire hospital's medical staff claimed conscientious objection to abortion?
Hannah McCarthy: According to the Solicitor General of the United States, their conscientious [00:14:30] objection would be honored by Health and Human Services. Okay. One other thing. Nick Philippe's view that the Biden administration is expanding EMTALA to include abortions. I just want to address that. The Biden administration did send out a memorandum after Dobbs came down, and it affirmed that a pregnant patient with an emergency medical condition as defined by EMTALA, who requires an abortion to be stabilized, must be offered that abortion regardless [00:15:00] of state laws prohibiting abortion.
Nick Capodice: So basically, the Biden administration wasn't expanding. It was reminding. It was reminding hospitals that EMTALA a federal law supersedes state laws.
Hannah McCarthy: Yeah, it's really clear about that. So to Philippe's concern that EMTALA forces physicians to provide abortions when they are not medically indicated. It's actually quite the opposite. Metalla mandates an abortion when it is determined to be medically necessary treatment to stabilize [00:15:30] a patient, because it mandates the necessary treatment for stabilizing a patient full stop.
Nick Capodice: All right, I got it. My last interview was with a practicing physician who had flown from Idaho to say what she had seen on the ground in her state in the wake of the recent abortion bans, which were in effect when I spoke to her.
Caitlin Gustafson: Caitlin Gustafson I'm a family physician in McCall, Idaho. Yeah, the case today is about life saving emergency abortion care. It's really about our ability [00:16:00] right now in Idaho and states like ours to provide the care when folks walk in with pregnancy complications, which are not, unfortunately, not all that uncommon, um, that they can receive the care that they need that preserves their health right there at home with their doctor, their health care community and their state. That's what's at stake. I grew up with in Tulsa. All doctors practicing grew up within toilets. A 40 year old law that really says that we need to [00:16:30] provide stabilizing medical care to anyone that comes to an emergency room, whether they're pregnant or not. Pregnant applies to any person. It was originally put in place so that hospitals didn't what we call dumping not take care of patients who didn't have insurance or they didn't want to take care of. And it really ensured that everyone receives the same level of safe health care. What we're seeing in Idaho right now, and states like ours isn't an exception is being made [00:17:00] that if that stabilizing, health saving, life saving care is an abortion, we can't provide that. And we're in the untenable situation of shipping by life, flight by whatever means necessary to get a patient out of state to get the care that they need.
Nick Capodice: What can you foresee being the ripple effects if this doesn't go the way that you hope it does today?
Caitlin Gustafson: Yeah, we're living the ripple effect in Idaho, in Idaho right now. Um, we're living it because we had this life [00:17:30] saving protection in place, and we were able to provide this care up until January, when the Supreme Court decided to hear this case, um, and for the time being, sided with the state of Idaho, saying that our state abortion law, one of the strictest in the country, could override that federal protection that we all know and that we've all learned and grew up in and provided care in for years and years during our career. So we're we're an example of it, because right now, if you have one of these [00:18:00] emergencies, you're leaving the state. Um, and to to the detriment of our patients health. Um, and it's causing distress across the medical system, the health care system as well. Because this isn't just about abortion care. Um, it's about access to emergency care. And in this case, uh, we're going to see if this doesn't come to an end either at the Supreme Court or the people, um, [00:18:30] coming together to say it's unacceptable. Um, we're going to continue to see health care complications. A worsening maternal health care crisis. Um, and a much deepening physician shortage in Idaho and other states like ours.
Nick Capodice: We're going to take a quick break, after which we're going to hear about what went on inside the court, as well as how the court decided.
Hannah McCarthy: But before that break, we can only make this show because [00:19:00] of listener support. Make a donation in any amount at our website civics101podcast.org.
Nick Capodice: We're back. You're listening to Civics 101. We're talking about Moyle v US. And, Hannah, before the break, you said you were going to take us inside.
Hannah McCarthy: All right, here we go. Okc um, this is the point where I would play tape of me walking into the Supreme Court and [00:19:30] going through the metal detectors and trying to play it cool in the press room, like I wasn't experiencing the most exquisitely joyous day of my entire career as a journalist and marveling at the still kicking facilitation of free press in a shared national obligation to provide people with information about what is going on in government institutions. But I don't have that tape.
Nick Capodice: You don't have that tape because you weren't allowed to have that tape, Hannah, because the Supreme Court does not allow recording of any kind except their own. But you did have a pen and paper, right?
Hannah McCarthy: I sure did. I will post pictures [00:20:00] of my scribbles on the episode page for this one. So again, go and listen to my mile a minute walking down the D.C. sidewalk with Nick rant if you want the details of the experience. But today I got to talk about the argument.
Archival: States and the consolidated case, Mr. Turner.
Archival: Thank you, Mr. Chief Justice, and may it please the court.
Nick Capodice: All right. But tell me you weren't over the moon to be in that room when this was happening.
Hannah McCarthy: I was orbiting the moon, Nick. The [00:20:30] court sketch from this day. I watched it sketched in real time. The sketch artist was sitting to my left eye like I watched it happen. Um. All right. So Joshua Turner is the advocate for Idaho.
Archival: First section 1395. The Medicare Act's opening provision forbids the federal government from controlling the practice of medicine. That's the role of state regulation. Second subdivision F Enamtila codifies [00:21:00] a statutory presumption against preemption of state medical regulations, and third, EMTALAs stabilization provision is limited to available treatments, which depends on the scope of the hospital staff's medical license. Illegal treatments are not available treatments.
Hannah McCarthy: Okay, so going into this case, I want you to keep in mind that as is so often the case, there are people who are disagreeing about what the law actually means. Turner [00:21:30] is not arguing that Impala is inherently unconstitutional, but he is arguing that the way the government is trying to enforce it is wrong. And his big sticking point here is this state law limits medical practice. The federal government cannot force a state to violate that law. That's not how preemption works.
Nick Capodice: Preemption. Meaning federal law trumping state law.
Hannah McCarthy: Yeah. Turner says that [00:22:00] EMTALA requires states to provide available stabilizing treatment. So if abortion by law is mostly not available, EMTALA does not require doctors to offer or provide it.
Nick Capodice: Contrary to what the federal government is saying, which is where he's getting the federal government is wrong thing.
Hannah McCarthy: Yeah. So the liberal justices on the court took issue with this because Metalurh does talk about preemption. It says, quote, the [00:22:30] provisions of this section do not preempt any state or local law requirement except to the extent that the requirement directly conflicts with a requirement of this section. Here's Justice Sonia Sotomayor.
Archival: You can't preempt unless there's a direct conflict. If objective medical care requires you to treat women who are who present the potential of serious medical complications, and [00:23:00] the abortion is the only thing that can prevent that. You have to do it. Idaho law says the doctor has to determine not that there's merely a serious medical condition, but that the person will die. Yeah, that's a huge difference, counsel.
Nick Capodice: Okay, so Sotomayor here is seeing a conflict. She's like, when it comes to an abortion, federal law says protect their health. Idaho law says nope, you can only protect their life.
Hannah McCarthy: Yeah. And [00:23:30] Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson asked a lot of questions along the lines of, all right, wait, so you're telling me that if this was happening to a pregnant woman or this or this, and she's not facing immediate death, but she could lose organs or seriously damage her health or ability to get pregnant in the future. And abortion is the only medical answer. Ohio wouldn't provide it.
Archival: Sepsis [00:24:00] an uncontrolled hemorrhage. There is likely to be a very serious medical condition, like a hysterectomy. Based on the. Let me go to another one. This particular patient they tried had to deliver her baby. The baby died. She had a hysterectomy, and she can no longer have children.
Hannah McCarthy: Sotomayor is rapid firing these scenarios, and Turner answers.
Archival: And Idaho law does not require that doctors [00:24:30] wait until a patient is on the verge of death. There is no emergency requirement. There is no medical certainty requirement.
Nick Capodice: Hannah, I thought death was the thing. Isn't that the thing? A doctor in Idaho can't perform an abortion to prevent death.
Hannah McCarthy: The law says, and I quote, only when it is necessary to prevent the death of the pregnant woman. Turner says that it's about good faith, medical judgment. It varies case by case. Justice Amy Coney Barrett has a problem [00:25:00] with this.
Archival: I'm kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered, and you're now saying they're not.
Archival: No, I'm not saying that. That's just my point, Your Honor.
Archival: Is that, well, you're hedging. I mean, Justice Sotomayor is asking you, would this be covered or not? And it was my understanding that the legislature's witnesses said that these would be covered.
Nick Capodice: Wait. Explain this. Who said what would be covered?
Hannah McCarthy: Yeah. Okay, so Barrett is referencing legal briefs. So before oral arguments actually happen at the Supreme Court, both sides submit [00:25:30] lots and lots of information to the justices to try to make their case. Petitioners from Idaho sent the court some briefs that said, you know, just to be clear, when it comes to certain cases, the cases that the Biden administration raised, even if death isn't imminent, abortion is a permissible treatment.
Nick Capodice: All right, so Barrett is asking Turner why he's not just saying, don't worry, Justice Sotomayor, with these hypotheticals, you're raising a doctor would be [00:26:00] allowed to provide an abortion. Yeah, that's.
Hannah McCarthy: What he's being asked, essentially. And Justice Brett Kavanaugh kind of says the same thing. You know, he's like the United States says that you, Idaho, would deny women abortions in these cases. But you, Idaho, have said that no, in these cases, we wouldn't.
Archival: Just want to focus on the actual dispute as it exists now, today, between the government's view of EMTALA and Idaho law, because Idaho law has changed since [00:26:30] the time of the district court's injunction, both with the Idaho Supreme Court and with a clarifying change by the Idaho Legislature, you say in your reply brief. And so to the the moil reply brief says that for each of the conditions identified by the Solicitor General, where under their view of EMTALA, an abortion must be available. You say in the reply brief that Idaho law in fact [00:27:00] allows an abortion in each of those circumstances, and you go through them on pages eight and nine of the reply, brief each of the conditions.
Nick Capodice: It sounds a little bit like Barrett and Kavanaugh are saying, you know, based on the information you gave us, you don't have a problem here.
Hannah McCarthy: Yeah. They're asking, you know, whether there is a dispute at all. But then the liberal justices are like, there's another issue here, Idaho. You're telling us federal law does not preempt state law? [00:27:30] And we just don't get that. Here's Kagan.
Archival: Your theory of EMTALA is that EMTALA preempts none of it, that a state tomorrow could say, even if death is around the corner, a state tomorrow could say even if there's an ectopic pregnancy, that's still that's a that's a choice of the state. And EMTALA has nothing to say about it.
Archival: And that understanding is a humble one with respect to the federalism role of states. That's the primary care providers [00:28:00] for their citizens, not the federal.
Archival: It may be too humble for women's health. You know.
Nick Capodice: There's that word federalism.
Hannah McCarthy: That's what it's all about. Nick Idaho is saying we are allowed to set certain standards. That is how federalism works. And the liberal justices are saying, hang on. Federal law. Preempting state law is also how federalism works. And then Barrett and Kavanaugh, two conservative justices, are saying, what problem are we actually practically having here? [00:28:30] So, okay, the United States is the other side of this case. The advocate for the United States is Elizabeth Prelogar.
Archival: Today, doctors in Idaho and the women in Idaho are in an impossible position. If a woman comes to an emergency room facing a grave threat to her health, but she isn't yet facing death, doctors either have to delay treatment and allow [00:29:00] her condition to material to materially deteriorate, or they're airlifting her out of the state so she can get the emergency care that she needs. One hospital system in Idaho says that right now, it's having to transfer pregnant women and medical crisis out of the state about once every other week.
Hannah McCarthy: So right out of the gate, Justices Clarence Thomas and Samuel Alito asked Prelogar about the spending clause.
Nick Capodice: What now?
Hannah McCarthy: EMTALA is Spending spending clause legislation. It requires [00:29:30] hospitals that receive federal funds to abide by the care standards it establishes. The spending clause, by the way, is in the Constitution. So here's Thomas.
Archival: Uh, general, uh, are you aware of any other, uh, spending clause legislation, uh, that, uh, preempts criminal law.
Hannah McCarthy: So Prelogar answers no, none that come to mind. But there are a bunch of other cases where courts, including this one, have upheld [00:30:00] preemption when it comes to spending clause legislation. So that extends to this case. But Thomas is asking in part because the US sued Idaho. It did not sue the hospitals.
Archival: In this case, you are bringing an action against the state and the states not regulated. Uh, are there other examples of these types of suits?
Archival: Sure. I mean, there are numerous examples where the United States [00:30:30] has sought to protect its sovereign interests in situations where a state has done what Idaho has done here and interposed a law that conflicts. So I'd point to Arizona versus United States.
Hannah McCarthy: As Prelogar says, the U.S. sued Idaho because Idaho is preventing its hospitals from complying with Impala. And Thomas asks, essentially, well, can't the hospitals just tell the state that Impala preempts state law? And Prelogar says, sure, they could, but I'm.
Archival: Not aware of any principle or precedent [00:31:00] in this court's case law to suggest that that's the only way for the government to protect its sovereignty.
Archival: That is the normal way, though.
Archival: I think that that's often the fact pattern of particular cases.
Hannah McCarthy: Now, Alito is not convinced.
Archival: How can you impose restrictions on what Idaho can criminalize, simply because hospitals in Idaho have chosen to participate in Medicare? I don't understand how this squares with the whole theory of the spending clause.
Archival: Well, I think that it squares with this court's long line of precedents cited at page 46. Well, I've [00:31:30] looked at that.
Archival: I've looked at those cases. I haven't found any square discussion of this particular issue, but I'm interested in the theory. Can you just explain how it works in theory?
Archival: Sure. So spending clause legislation is federal law. It's passed by both houses of Congress. It's signed by the president. It qualifies as law within the meaning of the Supremacy Clause.
Archival: Absolutely, absolutely.
Archival: And so I think the Supremacy Clause dictates the relevant principle here, that what the law where. [00:32:00]
Archival: I'll let you finish. Yes. Go ahead.
Archival: In a situation where Congress has enacted law, it has full force and effect under the Supremacy Clause. And what a state can do is interpose its own law as a direct obstacle to being able to fulfill the federal funding conditions.
Nick Capodice: Hannah. Did Elizabeth Prelogar just Civics 101 Justice Samuel Alito.
Hannah McCarthy: I mean, honestly, um, it did kind of feel like that, but I'm also, uh, predisposed to hear such things. And he did ask her how it worked. [00:32:30] Uh, but anyway, after Prelogar explained her theory, Alito responded with, basically, all right, I just don't understand it. And by the way, Nick, there have been other cases where states have argued that a federal spending law is unconstitutionally coercive.
Nick Capodice: Because Congress can say, you can have all this pretty money, but you have to follow our rules. And states are like, we need that pretty money, and your rules go [00:33:00] too far.
Hannah McCarthy: Yeah. And Prelogar basically said that in this case, federal supremacy rules supreme. But it did seem like Alito and Thomas were not so sure about this, which is a potentially really big deal. Or it would have been if this case really went anywhere at this level. Um, but before I get to that one last really big.
Nick Capodice: Deal.
Archival: We've now heard, let's see, uh, an hour and a half of argument on [00:33:30] this case. And one potentially very important phrase in EMTALA has hardly been mentioned. Maybe it hasn't even been mentioned at all. And that is my reference to the woman's, quote unquote, unborn child. Uh, isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase unborn child? [00:34:00]
Nick Capodice: Well, I'm glad this came up because that's really the argument for abortion opponents. This is all about saving the life of an unborn child. Yeah.
Hannah McCarthy: And Alito is saying, essentially, how can EMTALA include abortions as necessary care if the law says you have to care for the health of the "unborn child.
Archival: 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 [00:34:30] itself is an individual with an emergency medical condition. But that's not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her.
Hannah McCarthy: Now, Congress added, quote unquote, unborn child to the act in 1989. So just a little reminder. EMTALA was passed in 1986 to prevent patients in emergencies from being turned away from hospitals. Congress added the 1989 provision to clarify that an unborn child [00:35:00] also counted in terms of stabilization. At that time, abortion was a constitutional right, so there wasn't a question of whether one would be provided to stabilize a mother. The question was whether a woman would be turned away if her unborn child needed help. Congress clarified. You know, no, the mother gets the care if she's in trouble or if her pregnancy is in trouble.
Archival: The statute makes clear that's the pregnant woman. And of course, Congress wanted to be able to protect her in situations [00:35:30] where she's suffering some kind of emergency in her own health isn't at risk, but the fetus might die. That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is engraved distress. But the woman is not at all affected. Hospitals otherwise wouldn't have an obligation to treat her, and Congress wanted to fix that, but to suggest that in doing so, Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization. I think that that is an erroneous reading of this.
Archival: Nobody's suggesting that the woman is not an individual, and she doesn't, [00:36:00] uh, she doesn't deserve stabilization. Well, that.
Archival: The premise of the question would be that the state of Idaho can declare that she cannot get to the stabilizing treatment, even if she's about to die. That is their theory of this case and this statute. And it's wrong.
Hannah McCarthy: Can I just tell you, Nick, that watching this, it felt like it was happening a million miles a minute. And it felt to me, [00:36:30] tense. But listening to this again, I'm like, you know, I don't know. They seem pretty calm.
Hannah McCarthy: These are the Uber professionals here. But also I do believe in the power of body language and being an animal in a room with other animals. And I am just saying, sitting in the Supreme Court, this felt high stakes and contentious and well, again, it might have been. But you know, this case did not go where [00:37:00] it might have gone right.
Nick Capodice: June 27th, after making the mistake of accidentally publishing it a day early, the court issues its opinion.
Hannah McCarthy: It's a 6-3 decision. They say the writ of certiorari, which is what a court grants when a petitioner asks them to hear a case, was improvidently granted and that the stays they ordered on the abortion ban in Idaho would be vacated.
Nick Capodice: So what exactly does [00:37:30] that mean?
Hannah McCarthy: It means, first, that the court believes it should not have accepted this case for review in the first place, and that the stay, the order of the court to continue the Idaho ban is removed, and that lower courts can now go forth and work on this case.
Nick Capodice: So basically, this is not a ruling on abortion. It's not.
Hannah McCarthy: But at least for now, unless and until the lower courts do more, the abortion [00:38:00] ban is lifted in Idaho. Okay. So, Nick, there are four opinions, two concurring with the majority, one dissenting and one partially concurring. Partially dissenting.
Hannah McCarthy: Now, the concurring opinions agree that the case should not have been taken up, but for totally different reasons, and the dissent and partial dissent agree that the court should have issued some kind of ruling, but also for totally different reasons. So [00:38:30] Justice Elena Kagan wrote that the court never should have stepped in in the first place. That EMTALA absolutely applies to abortions, even in situations where the life of the mother is not immediately at risk, she said, quote, what falls in the gap between them are cases in which continuing a pregnancy does not put a woman's life in danger, but still places her at risk of grave health consequences, including loss of fertility, unquote. And then later, quote, that is why [00:39:00] hospitals in Idaho have had to airlift medically fragile women to other states to receive abortions needed to prevent serious harms to their health. Justice Barrett's concurring opinion said, well, we shouldn't have taken up this case because both parties changed their tune before they could come before the court. Quote, the United States has clarified that Impalas reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the district [00:39:30] court entered the preliminary injunction, and based on the parties arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up, unquote.
Nick Capodice: All right. So what about the dissent and the partial dissent? Partial concur. Yeah.
Hannah McCarthy: Okay. So Justice Alito wrote a dissent. Justice Gorsuch and Thomas joined him, and Justice Jackson wrote the partial dissent. Partial concurrence. Both Jackson and Alito felt that this [00:40:00] was an opportunity to make a decision with way more impact, and took issue with the court passing on that opportunity. Alito said that the ruling was, quote, puzzling and that, quote, the court decides it does not want to tackle this case, after all, and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this court now ducks, unquote. And Jackson said that the ruling was not a victory for pregnant women in Idaho, that it was, in fact, [00:40:30] a delay, that the court quote, had a chance to bring clarity and certainty to this tragic situation. And we have squandered it, unquote. Justice Jackson implied that this issue is going to keep coming before the court, and she asked if they would ever make a clear decision or, quote, maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable states to flagrantly undercut federal law, facilitating the suffering of people [00:41:00] in need of urgent medical treatment, unquote.
Nick Capodice: I'm thinking about that word that Justice Jackson used. She used the word punt. And you and I, we've seen this a lot in our episodes about various Supreme Court rulings. There are different reasons for kicking the ball away. So sometimes a punt is a punt back to a lower court, and the justices know how that lower court is going to rule. They get what they want, but the blame is not on them. And sometimes a punt is just a stall for time, [00:41:30] right? Like we're going to get back to this when we have more information kind of thing. But this punt, Hannah, this punt, which deals with two very important issues abortion access and the ability of a state law to preempt a federal law. It seems that at least Jackson and Alito are looking at this as kind of a dereliction of duty.
Hannah McCarthy: Their issues, though, that, you know, if history and Justice Jackson have anything to teach us, the Supreme Court may very well have [00:42:00] the opportunity to address again someday.
Nick Capodice: Well, if they do, do you want to go?
Hannah McCarthy: Do I want to go? Yeah. Nick, I think I want to go. Obviously, I want to go. Whatever the public opinion of that joint, it is still the Supreme Court for now. I mean, yeah, come on. Do I want to go? That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer [00:42:30] and Rebecca LaVoy is our executive producer. Music in this episode by Hanu Dixit, Konrad Oldmoney, Ikimashoo Aoi, Hyperfun, HoliznaCo, Brendon Moeller, Up the Wall, Marten Moses, El Flaco Collective, Cushy, Real Heroes, Gerhard Feng, Howard Harper Barnes, The New Fools, HATAMITSUNAMI, Society and Chris Zabriskie. If you liked this episode, or if you didn't, or if you have questions about American democracy or just questions for [00:43:00] us, you can tell us about it. You can ask us all of that at our website, civics101podcast.org. And if you don't want to miss another episode of Civics 101, make sure to follow us on Apple Podcasts or wherever you get your podcasts. Civics 101 is a production of NHPR New Hampshire Public Radio.