The ‘WTF Is Happening’ Guide to the Supreme Court’s 2nd Abortion Case

In Moyle v. United States, Idaho argues that its abortion ban takes precedence over a federal law establishing a right for all people to receive emergency care, including abortion.

By Kylie Cheung | April 19, 2024 | 2:45pm

Photos: Shutterstock Abortion Politics

The ‘WTF Is Happening’ Guide to the Supreme Court’s 2nd Abortion Case

On April 24, the Supreme Court will hear oral arguments in Moyle v. United States, a case about Idaho’s total abortion ban and a federal law called the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA passed in 1986 and requires hospitals to provide stabilizing, emergency care to patients—including those experiencing pregnancy-related complications—regardless of individual state laws. In certain cases, abortion is necessary to save a pregnant person’s life, but Idaho’s ban allows abortion only if the pregnant person is basically moments from death. In Moyle, the court will determine whether Idaho’s ban and its extremely narrow exception for life-threatening medical emergencies takes precedence over EMTALA.

The case also relates to fetal personhood because Idaho is trying to argue that EMTALA actually does say that an embryo or unborn fetus is a “patient” whose rights should supersede the rights of the person carrying the pregnancy. (It definitely doesn’t say that.)

How did we get here?

In July 2022, one month after Roe was overturned, the Biden administration issued guidance reminding hospitals—especially in states where abortion was already banned—that, no matter what their state laws say, hospitals must adhere to EMTALA and provide emergency, stabilizing care including abortion to pregnant people who need it. (Specifically, EMTALA applies to hospitals that receive Medicare funding, which is a majority of hospitals in the U.S.) Obviously, the states that used the end of Roe to immediately enact their dormant abortion bans were not happy about this federal guidance reminder.

The state of Texas quickly sued in response. In January of this year, the famously conservative Fifth Circuit Court of Appeals (located in Texas) ruled in Texas’ favor, determining that emergency rooms aren’t required to perform life-saving abortions under EMALA.

How did Idaho get involved?

While Texas was suing the federal government, the Justice Department sued Idaho in August 2022 to stop its abortion ban from being enforced. Idaho’s total ban had a barely-there medical exception that was so narrow and unclear, Attorney General Merrick Garland argued that it would force doctors to violate EMTALA. A lower court then issued an injunction to temporarily block the part of the law that permits abortion only if someone is about to die. But in January, the Supreme Court ruled that Idaho can fully enforce its ban until the court issues a full ruling later this year.

The Moyle in Moyle v. United States is Mike Moyle, the Idaho legislature’s Republican Speaker of the House who passed the ban, ironically called the Defense of Life Act. In February, Idaho Attorney General Raúl Labrador said in a statement that Idaho’s ban “is perfectly consistent with EMTALA, which provides explicit protections for ‘unborn children’ in four separate places,” and claimed Biden is trying to “force doctors to perform abortions.” A federal law that requires doctors to save a pregnant person’s life when they need help is certainly not forcing “doctors to perform abortion,” but sure dude.

What are repro rights groups arguing?

In an amicus brief filed at the end of March, Pregnancy Justice, along with the NYU School of Law Reproductive Justice Clinic and If/When/How point out how Idaho is trying to say that EMTALA obviously gives a fetus “patient” status, even though EMTALA explicitly protects pregnant people—not the “life” of an unborn fetus.

Democracy Forward also filed an amicus brief for the Moyle case on behalf of the American College of Obstetricians and Gynecologists (ACOG) this month—alongside other national medical organizations, medical providers, and experts—about the implications of this case and the legal fallacies baked into Idaho’s case. The brief says that Idaho’s argument ultimately ignores that, due to the Constitution’s supremacy clause, “a federal law like EMTALA takes precedence over state law,” meaning health care providers in Idaho should adhere to EMTALA’s standards for providing emergency stabilizing care.

The state’s ban asks providers to violate EMTALA and all medical ethics, and engage in what the amicus brief characterizes as “expectant management,” or the “wait and see approach,” and that it withholds “treatment necessary to protect their patient’s health and waiting to perform a clinically indicated abortion until it becomes necessary to prevent the death of the patient.”

How has Idaho’s abortion ban impacted hospital patients in the state?

In Democracy Forward’s brief, medical experts argue that health care providers “are unable to comply with both the Idaho law and EMTALA during obstetrical emergencies.” Plus the threat of criminalization could push many health care providers to stop offering care in Idaho altogether. The brief notes that within 15 months of Idaho’s abortion ban taking effect, the state “lost a net total of 58 of 268 obstetricians (21.6 percent).”

Specifically, Democracy Forward cites the cases of one Idaho woman who had to travel to Oregon to receive an emergency abortion for an unsafe, nonviable pregnancy that put her life at risk, as well as the case of Amanda Zurawski in Texas, who almost died due to the severe delay in getting an emergency abortion for a pregnancy that threatened her life.

Can we circle back to fetal personhood?

In addition to banning abortion, the anti-abortion movement has been advocating for personhood rights for embryos and fetuses for years. We saw this most recently when the Alabama Supreme Court ruled that frozen embryos were unborn “extrauterine children,” forcing fertility clinics across the state to pause IVF services. And even before that, people have long faced criminal charges for miscarriages, alleged self-managed abortions, or other behavior deemed to “endanger” their fetus.

In Pregnancy Justice’s amicus brief, the organization argues that Idaho is purposely misinterpreting EMTALA to make a case for fetal personhood by claiming “that EMTALA says something it does not.”

Idaho latches onto EMTALA’s references to ‘unborn child’—in definitional sections and provisions related to safe transfer—and claims that Congress must have guaranteed an EMTALA right to two patients equally: the pregnant woman and the fetus she carries. What is more, in Idaho’s telling, Congress’s reference to a hospital’s “available” “staff and facilities” actually means that Idaho law dictates how and when abortion care may be provided to those “patients.” Based on this conjured formula, Idaho claims that EMTALA permits emergency abortion to be withheld under the Total Ban until a pregnant woman is close to death

Nothing in EMTALA’s plain language supports Idaho’s radical attempt to re-write federal law. To the contrary, Idaho studiously ignores where the term “unborn child” is missing from EMTALA. “Unborn child” is excluded from sections that exclusively grant an “individual” (here, a pregnant woman) the federal right to emergency stabilizing care, and the right to accept or refuse that care.

The brief further emphasizes that the emergency medical care that EMTALA describes is applied to the pregnant person, not the fetus. Should the Supreme Court side with Idaho and its definition of embryos and fetuses as patients, this could be cited in future court decisions or legislation to justify limitations on pregnant people’s rights.

Little attention has been paid to how, on top of everything else, anti-abortion policymakers’ interpretations of EMTALA also impact fetal personhood, Karen Thompson, legal director of Pregnancy Justice, told Jezebel. When any law is interpreted to treat a fetus as a separate person with rights in conflict with the pregnant person’s—or, in this case, to treat the fetus as the patient over the pregnant person—this creates a “very dangerous, slippery slope,” Thompson says.

“If we are going to be in a world where an embryo has more rights than an actual person, that affects everything—fetal personhood becomes the basis of our health care system, possibly at the cost of the pregnant person’s life,” Thompson said. She stressed that the case is “not about changing the abortion ban or the law, but allowing all people in the U.S. who present at an emergency room needing emergency health care to get that emergency health care, not be pushed away because they’re pregnant.”

So what’s going to happen?

The case is being considered by the same Court that overturned Roe and determined that Idaho’s ban can take effect until it considers the legality. Should SCOTUS rule with Idaho, the state’s horrific abortion ban will remain the law, hospitals could become even more confused about their obligations under federal and state laws, and it could also cause a further chilling effect for health care providers when it comes to emergency abortion care. The latter is something we’re already seeing in states like Texas and Louisiana, where doctors report performing C-sections (which are substantially less safe than procedural abortions) for pregnancy-related emergencies because they’re worried they’ll be charged or lose their license if they perform an abortion,

Thompson noted that the Supreme Court’s decision could have ripple effects across the country. “This isn’t a red or blue state issue,” Thompson said. “If federal, life-saving protections are being repealed, that is something everyone in this country is going to have to deal with regardless of where you live.”