Thread by @stevenmazie

At 10 am, the Supreme Court hears its second abortion case in as many months. Have a look at my quick @TheEconomist preview and follow me here. I’ll be analyzing the oral argument as it happens espresso.economist.com/face3ee8cd23d4…

Here are the lawyers arguing today. The hearing is scheduled for one hour but, with additional questions in the justice-by-justice rounds, will probably take about two hours.

And we're off. Joshua Turner begins his defense of the Idaho Defense of Life Act that does not permit abortion in emergency settings unless the pregnant woman faces an imminent risk of death.

Turner says nothing in EMTALA requires medical treatments that violate state law.

"Stabilization" is limited to available, legal medical treatments.

Parade of horribles: ER docs will be able to do all kinds of illegal things if the federal government wins.

Justice Thomas has first question, as usual, on pre-emption.

Then Justice Jackson jumps in: EMTALA is about stabilizing care in emergency medical conditions, a "fairly narrow slice of healthcare services"

Kagan: you've conceded that EMTALA imposes a stabilization requirement, which is interference, if you will. So it's *not* all the state's way, right? You agree with that.

Kagan: the statute tells you what the content of the requirement is! "Ensure within reasonable probability" that the patient's health doesn't materially degrade. That's objective! Need to provide the necessary treatment!

Kagan: it incorporates accepted medical standards of care.

Turner: that's qualified by what's available.

Kagan: the availability of staff and facilities!

Kagan and KBJ both v animated!

KBJ: federal mandate is to provide stabilizing care, period.

Turner: that is not even HHS's conclusion.

Sotomayor tries to jump in.

All three liberal justices champing at the bit.

Soto: "you're turning preemption [federal law superceded state law] on its head!" Gives analogy of juvenile diabetics - a law that says, don't give insulin to diabetics. Is that ok?!

(Sotomayor has had diabetes since childhood.)

Turner: the law tells HHS the opposite.

Soto: wrong-o

(Turner not getting in a lot of words.)

Turner: we agree there's a controversy here.

Soto: no no no no no - not just a controversy. You're saying there's no federal law that prohibits any state from saying, even if a woman will die, you can't perform an abortion.

Turner: no state has such a law.

KBJ: EMTALA says you need to provide X; you don't provide X. How is that not a direct conflict??

Kagan: Congress leaves it to the medical community - to try to avoid deterioration of patient's health.

Kagan: I think you have to concede that abortion is the standard of medical care, because the Idaho law allows it when the woman's life is in peril!!

Turner: ...

Kagan: So then EMTALA extends that to women facing a situation where she'll "lose her reproductive organs"!

Turner: that's a tough moral question

Kagan: that's a good answer if EMTALA didn't take a clear position on how to answer the question! But it does.

The three liberal justices are not playing today.

Soto: woman feels a gush of fluid leave her body, doctors believe she needs abortion to avoid hemorrhage. Florida hospital sent her home. She bled, returned and thankfully was saved. Would Idaho allow the abortion in such a case?

Turner: depends

Soto: counsel, answer yes or no

Soto doesn't await answer, gives another example of a woman facing health catastrophe without abortion.

Barrett speaks up for first time!

Barrett: why are you hedging? Those abortions would be covered, right?

Turner: yes...

We're about 30 minutes in, and it's been ~95% questions from the four women on the Court so far.

Roberts jumps in: who decides if something is allowed or not under EMTALA?

Turner: doctor's medical judgment will be judged based on good faith, not an objective standard.

Alito: good-faith medical judgment must take account of certain objective medical standards, right? You're being asked today to provide a snap judgment and "hardly been given an opportunity to answer the hypotheticals"? Would you need more time and context to decide?

Turner, replying to Sotomayor: YES, Idaho law does say abortions are not allowed if a woman would just lose an organ but not be at risk of death.

Note: Kavanaugh and Gorsuch were silent during the main round of questions. We'll see if they ask questions during the justice-by-justice round.

Kagan: practicing medicine is hard, but there are standards of care, right?

Turner: yes

Kagan: sometimes abortion is the standard of care, and Idaho admits that implicitly

Kagan: when a woman is about to lose her repro organs, and abortion is the solution, isn't that the standard of care?

Turner: EMTALA didn't answer that tough question in a four-page law

Kagan: Congress said let doctors care for patients to stabilize them!

Kagan: your position would apply even if there were no death exception! A state tomorrow could say, even if there's an ectopic pregnancy, EMTALA has nothing to say about it!

Turner: EMTALA is more humble.

Kagan: "It may be too humble for women's health, you know?"

Gorsuch quietly and slowly tries to rescue Turner.

Turner: Yes, doesn't matter if the death is imminent.

Gorsuch asks about how EMTALA applies to "the unborn child" -- we've been waiting for this.

Turner very happy it comes up. Strange for Congress to have regard for the unborn child and require the child to be aborted.

TURNER SAYING THAT EMTALA EMBRACES FETAL PERSONHOOD.

Kavanaugh asks about mental health (seen by anti-abortion folks as a huge loophole for allowing abortion)

Turner: Right - the Biden administration's interp of EMTALA opens that up

Barrett, animated: why do we have to address the stabilizing condition if no one has been able to identify a conflict btw death exception & health exception?

Turner: we win w no factual conflict or otherwise

Turner complains about fed govt's "rigid" view of stabilization

Barrett brings up conscience question. Quick exchange.

Turner to KBJ: there's no conflict btw Idaho law and EMTALA. They have to comply with the former to comply with the latter.

Bit of a tangle here.

Turner tries to clarify: doctor uses medical judgment and state-law standards.

KBJ: but EMTALA tells the doc how he's supposed to make that judgment (as Kagan said)

Turner: the q is how do doctors comply with EMTALA

KBJ cites Supremacy Clause of the constitution, which has been in the background for the past hour but not explicitly invoked. It says federal laws take precedence over state laws.

KBJ is patiently working through this logical tangle to show that, at bottom, this is a state thumbing its nose at a federal law.

Turner: there would need to be a "clear statement" in EMTALA that Congress is ordering doctors to give abortions.

TURNER SITS; ELIZABETH PRELOGAR BEGINS.

P: EMTALA says no one should be denied the care they need to protect their health. Women may need immediate treatment to avoid sepsis and other health emergencies. She must be offered, at some times, pregnancy termination. There is daylight between that & Idaho's death exception.

P: Idaho hospital says it is helicoptering women outside the state about once every other week so they can be treated.

Thomas: is there any other spending clause law that pre-empts a state criminal law?

P: sure - plenty - AZ v. US, US v. WA - fed govt cases protecting its interests

Alito: how does this work w Congress's spending power challenge? How can you impose restrictions on what Idaho can criminalize?

(Conservative justices talking about everything but women and healthcare.)

Alito has a feeble record of tangling with Elizabeth Prelogar over the past couple of years, as @StrictScrutiny_ documented so beautifully in this week's episode. And here he is trying again.

@StrictScrutiny_ cc: @ProfMMurray @LeahLitman @kateashaw1

@StrictScrutiny_ P: a mental health emergency is not addressed by an abortion. That would be "incredibly unethical".

Alito: does health include mental health?

P: yes, but abortion is not the practice to address ANY health emergency.

@StrictScrutiny_ Alito: does the health exception refer to "temporary" or just "permanent" deterioration?

P: well, both, as doctors don't know in advance if, say, liver damage will be permanent

@StrictScrutiny_ OK Alito is done for now.

Gorsuch asking about equitable vs. remedial relief.

@StrictScrutiny_ Gorsuch : You're citing In re Debs? Not our finest moment as a country.

P: it's part of the history and tradition of our country

@StrictScrutiny_ Roberts interrupts KBJ to ask his question on conscience protections for doctors.

P: There are federal protections for doctors, and there's no example of a hospital that opposes all life-preserving pregnancy terminations.

@StrictScrutiny_ Roberts: does EMTALA override those protections?

P: no, but the docs should state their objection in advance.

@StrictScrutiny_ Roberts: what if there are no doctors available?

P: then they wouldn't be able to provide the care. No doctor can be forced to provide an abortion.

Roberts: but if hospital continually disobeyed?

P: Feds would terminate Medicare funding agreement.

@StrictScrutiny_ P: the hospital CAN register a conscience objection and that would cover it.

@StrictScrutiny_ Barrett asks about Hyde Amendment (prohibiting fed $ to abortion)

Prelogar: hospital still needs to provide the care. No inconsistency btw EMTALA and Hyde.

@StrictScrutiny_ Barrett: imagine a 10-wk pregnancy and need to abort within 15 weeks to avoid health problems. What is fed govt's position then?

P: that's not an emergency medical condition. A high-risk pregnancy does not trigger EMTALA.

@StrictScrutiny_ Obligatory side note:

Elizabeth Prelogar is impossibly good at this. The best.

@StrictScrutiny_ Barrett off hand brings up gender reassignment surgery.

Gorsuch picks it up: Congress could ban that nationwide, and could ban abortion nationwide.

Thinking toward another Trump administration, it seems...

@StrictScrutiny_ Gorsuch: do you think our clear-statement rule applies here?

P: yes

@StrictScrutiny_ KBJ finally gets to her question, and it's a softball:

Is it correct that there's little distinction between EMTALA and Idaho law?

P: no way! Idaho doctors "have to shut their eyes to everything except death" but kidney failure, loss of organs, etc., is required by EMTALA

@StrictScrutiny_ Prelogar talking with authority about P-PROM, premature rupture of the membranes. chop.edu/conditions-dis…

Alito notes that EMTALA uses the term "unborn child".

Isn't that interesting, he says. Doesn't that tell us something?

ALITO SUMMONING FETAL PERSONHOOD BY ATTRIBUTING IT TO CONGRESS

Alito: EMTALA says hospital must stabilize threat to the unborn child. And you say the statute is clear in your favor?!

Alito: EMTALA protects women and unborn children! You want us to interpret a law passed during the Reagan administration as an abortion mandate?!

P: the hospital must give her the choice to protect her health via an abortion.

P just laugh/scoffed at Alito's question - to suggest that a woman isn't an individual is an erroneous reading of this statute!

Soto: tell us more about the daylight - imminence

P: there must be some degree of imminence to death...eg., "her sac had ruptured, but she wasn't infected yet"...

Kagan: six pregnant women have been airlifted from one hospital this year (vs. one last year). Why is this happening??

P: this is a departure from previous practice. Doctors' livelihoods are on the line. They're nervous.

P: stacks tragedy upon tragedy.

Kagan: forcing someone onto a helicopter cannot be the standard of care.

P: yes, and the whole purpose of EMTALA is to avoid patient dumping!

Kagan: tell us about spending clause question.

P: many federal statutes give funds to parties with strings tied.

Kagan: this q has never been a part of this case, right?

P: yes, it's new. so waived.

Kavanaugh: Idaho says 9 conditions by govt where EMTALA requires abortion be available.

P: can't square that with text of statute

Kav: if p. 89 of reply brief were Idaho law, would there still be a case?

P: then the case goes away, yes, but we have no authoritative ruling on that

Kav: EMTALA was not designed to deal with particular forms of care.

P: Can't square that with text of Idaho statute. No reticulated list of all treatments in EMTALA, but it has a baseline standard of care. It's why states can't ban epinephrine.

Barrett: main diff is life/health? Does any other state not take health into account?

P: there are six states.

B: has fed govt brought suit in other states?

P: not yet

KBJ: does clear statement rule cut against Idaho's argument? Because EMTALA is "clear" about the requirement of stabilizing patients? And you'd need a "clear" exemption for abortion is that's what Idaho wants?

P: yes absolutely. There's no canon of doughnut holes (Bostock)

P is effectively making a rebuttal/closing statement right now, as she's respondent and won't get that official opportunity.

Rebuttal from Turner: sect. 1395 does not allow particular treatments for particular cases.

Turner: you presume state law operates alongside federal law. We know nurses can't perform open-heart surgery. Idaho can ban that. Same with abortions.

Turner closes with idea that there's no way to limit this to abortion or to Idaho -- won't end with the six states Prelogar mentions. Prelogar is fighting with American Psychological Association on mental health. Spending clause was briefed on pp. 20-21.

That's it. After just shy of two hours, it seems clear that only three justices will say it is the federal government's prerogative to require hospitals to offer emergency abortions to stabilize women facing major health consequences from their pregnancies.

END