Alito’s Dissent in Emergency Abortion Case Provides “Building Blocks” for More Extreme Bans

Where abortion is concerned, it appears there is at least one thing on which ideological opposites Justices Samuel Alito and Ketanji Brown Jackson agree: The Supreme Court’s decision this week to avoid ruling on whether federal law protects abortion care in emergency situations was the wrong one.

Their differences immediately reemerge, however, as to why. For Alito, the answer is that there is apparently no federal law that protects abortion access, and the court should have said so. For Jackson, the reason is opposite: Federal law clearly protects patients who need abortion care, and failing to say so puts people in harm’s way.

“How long must pregnant patients wait for an answer?” Jackson wrote in a fiery dissent. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay.”

At issue is the scope of the federal Emergency Medical Treatment and Active Labor Act, or EMTALA, which was passed in the 1980s in response to an epidemic of risky patient transfer practices, known as “patient dumping.” The law requires all hospitals that receive Medicare funds to evaluate every patient who shows up to the emergency room and, in a medical emergency, to provide necessary stabilizing treatment. The law defers to medical professionals to determine when an emergency exists and what stabilizing treatments are needed.

As states rushed to ban abortion in the wake of the Dobbs ruling, some, like Idaho, enacted laws with only vague exceptions for care, including to save the “life of the mother.” The federal government quickly sued to block Idaho’s ban, arguing that EMTALA preempted it. In other words, the Biden administration argued that because federal law guarantees every emergency room patient access to stabilizing treatment, Idaho can’t prevent pregnant people from accessing abortions during a medical emergency. Idaho, of course, disagreed.

While the court’s decision to sidestep a ruling means that, for now at least, emergency abortions are still allowed in Idaho, it also leaves open current and future challenges to EMTALA. Meanwhile, opinions by Alito and Justice Amy Coney Barrett, joined by other members of the court’s conservative supermajority, offer a clear legal road map for anti-abortion lawmakers and activists who are plotting for a nationwide abortion ban.

As Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, put it, the “opinions just provide building blocks” for extremists to “reach their ultimate goal.”

An Incomplete Victory

After some preliminary jockeying in the federal courts that saw Idaho’s ban enjoined as it related to emergency care — but well before the case had played out through the normal course of litigation — Idaho ran to the Supreme Court for intervention. The state claimed that it would be irreparably harmed if it wasn’t allowed to deny abortion care in emergency situations protected by EMTALA. The Supreme Court obliged, lifting the injunction and allowing the state’s ban to override EMTALA protections while the case was pending before the court.

On Thursday, however, in an unsigned, one-sentence order, the court concluded it had waded into the dispute too soon. It sent the case back to the lower federal courts to resume the litigation and allowed the injunction to go back into effect.

A similar situation is ongoing in Texas, where the state sued to block EMTALA’s enforcement against its own abortion ban. There, the 5th U.S. Circuit Court of Appeals last year co-signed Texas’s efforts, barring EMTALA’s protections in the state while the litigation is pending. The federal government has appealed to the Supreme Court, which still has not said whether it will hear the case.

It is cold comfort in a landscape where anti-abortion zealots are determined to force all people to carry their pregnancies to term.

For people in Idaho, the court’s decision to punt looks like a win for pregnant patients and medical providers who face harsh penalties for disobeying the near-total abortion ban. But as the Texas litigation shows, it is cold comfort in a landscape where anti-abortion zealots are determined to force all people to carry their pregnancies to term, regardless of their viability or the threats pregnancy may pose to the person’s life or future fertility. Nor has the court done anything to ensure that pregnant people aren’t considered second-class citizens in the emergency room and dumped to other jurisdictions for care — the problem the law was designed to prevent.

“The Supreme Court’s failure to clearly and unequivocally affirm the right of every pregnant person to emergency care,” Kolbi-Molinas said, means that “the chaos and confusion caused by abortion bans across the country, including in states like Texas, will continue to prevent providers from providing appropriate medical care to their patients when they need it most.”

“Alarm Bells”

In addition to the court’s unsigned order, several justices penned opinions either concurring with the decision or dissenting from it. Notable among those opinions, primarily for its fictitious content, is the dissent authored by Justice Samuel Alito, which was joined by colleagues Clarence Thomas and Neil Gorsuch.

Like Jackson, Alito disagrees with the court’s decision not to issue an opinion in the case, but for reasons other than the disservice that does to patients. Where Jackson is concerned about leaving patients and providers in limbo, Alito fully adopts Idaho’s position to argue that EMTALA never protected pregnant patients in need of abortion in the first place.

Alito drafted a wholesale rewrite of legislative and legal history.

His argument rests on four central claims: that since there’s no mention of abortion in EMTALA, it could not have covered abortion; that since noted anti-abortion lawmakers voted for EMTALA in the 1980s, the law couldn’t have conceivably protected abortion; that since the law contains four references to the “unborn child,” medical professionals are bound to consider the fetus as a separate and equal patient for whom abortion is never treatment; and that to allow EMTALA to preempt a corner of Idaho’s ban would be to unleash a wave of “elective” abortions inside the nation’s emergency rooms.

To make that case, Alito drafted a wholesale rewrite of legislative and legal history.

For starters, EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. Moreover, at the time of EMTALA’s passage, abortion was constitutionally protected care meaning no state had criminalized — or could legally criminalize — it. In other words, at passage, that was a non-issue among the bipartisan majority who voted for the law.

Alito is “using this strawman argument to try to sound like he’s reasoning through the legislative history, but he is making things up,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “And the reason he’s doing that is that the actual legislative history does not support his position.”

“The actual legislative history is that Congress created a national rule that made it so that it doesn’t matter who you are, the color of your skin, whether you can pay, what state you live in,” she said. “It is the single universal access to care rule that we have in the United States. And Justice Alito doesn’t get to just make up the history of this rule.”

Similarly, Alito has taken the “unborn child” references in the statute entirely out of context to claim that the law treats the fetus as a separate individual entity afforded equal protection under EMTALA. It’s a full-throated endorsement of the concept of “fetal personhood,” which is the aim of many anti-abortion activists and politicians.

The problem for the justice, however, is that the history of EMTALA and its actual language clearly say otherwise. Three of the four mentions of an “unborn child” in the statute relate directly to the duty of medical professionals to consider the risks to the fetus during labor when transferring a patient to another hospital. The fourth is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk.

“If a majority of the court were to endorse that theory, that would mean a nationwide abortion ban.”

Kolbi-Molinas of the ACLU said that “there should be alarm bells” going off about Alito’s dissent, “because we know there are extremists out there pushing a strategy to give legal rights to embryos and fetuses that would override the rights of the pregnant person.” While “fetal personhood” was not an actual question in the EMTALA case, she stressed, Alito’s opinion signals conservative justices’ appetite for endorsing it. “If a majority of the court were to endorse that theory, that would mean a nationwide abortion ban — and not only that, it would mean bans on IVF and birth control.”

In a separate concurring opinion, Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh gave credence to another troubling argument: that Congress may have overstepped its spending power by tying EMTALA to the receipt of Medicare dollars.

During oral arguments in April, an attorney for Idaho argued that because abortion is not specified in the text of the statute, the state can’t be forced to allow abortions as a condition for receiving Medicare funds — let alone to accept that EMTALA preempts the state’s criminalization of abortion.

“Petitioners have raised a difficult and consequential argument,” Barrett wrote, “about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal laws.” Put differently, the courts should decide whether Congress could use the power of the purse to force hospitals to provide abortion care in violation of the state abortion ban. (In his dissent, Alito also addresses the issue, concluding, on notion alone, that EMTALA would fall to such concerns.)

It’s a technical point, but one with vast implications. If the court’s majority eventually takes the opinion that Congress overstepped, said Huberfeld, they would allow states to nullify laws like EMTALA. Medicare, Medicaid, the Children’s Health Insurance Program, cash welfare, and food and housing programs would also be vulnerable.

“All of our major health laws rely on the spending power, at least in some degree,” she said. “If states didn’t have to comply with these federal laws, then we would have even more chaos and conflict over social programs.”

Health Care Denied

In his dissent, Alito also claims — without a bare hint of evidence to back it up — that upholding EMTALA’s protection for pregnant people somehow means opening hospital emergency rooms to “abortion on demand.” He appears to believe that many pregnant people in distress who wind up in the emergency room are actually there solely to access abortion — and, presumably, that doctors are fine to just wink and go along. 

The reality is that since the Dobb’s decision (also a product of Alito’s fanciful pen), the proliferation of abortion bans like the one in Idaho have led to distressingly common stories of patients being denied abortions amid medical crises, including in Idaho. As Justice Elena Kagan notes in a concurrence joined by Justice Sonia Sotomayor — and, in part, by Jackson — while EMTALA was blocked in Idaho (at the court’s direction), “the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week.” Over the course of the previous year, while EMTALA’s protections were in effect, they’d done so just once.

Still, Kagan agreed that sending the case back to the lower courts for further litigation was the right call. Jackson was not so sanguine. 

The court should not have intervened when it did, dismantling EMTALA’s protections in Idaho, Jackson argued, but neither should it have failed to rule when it had the opportunity to that the federal law preempts Idaho’s ban — and by extension the others like it. “As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho,” she wrote. “This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme.”

To Jackson’s mind, the case is clear: “Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho’s law is pre-empted.”

“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” she wrote. “It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened.”

The post Alito’s Dissent in Emergency Abortion Case Provides “Building Blocks” for More Extreme Bans appeared first on The Intercept.