Thread by @AngryBlackLady

My EMTALA THREAD!

Idaho atty arguing that Idaho law does not directly conflict with EMTALA. He says there's an express limitation in the statute regarding "availability of treatment."

But availability literally refers to "can the hospital perform this treatment," not "is this treatment legal in this state."

Idaho atty is arguing for a position that would allow states to outlaw whatever medical treatment they want and then force doctors to refrain from providing that treatment even if that treatment would stabilize an emergency patient.

It's no coincidence that the amicus brief filed by the Association of Christian Doctors *and Dentists* contained pages about "THE TRANSGENDER MANDATE."

EMTALA says that the doctor has to provide medical treatment to assure that no material deterioration of the condition is likely to occur absent the care.

Sotomayor: This is an objective standard that clearly has reference to accepted medical practice not just whatever a doctor wants to think.

Idaho atty started screeching about how doctors could provide heroin as stabilizing treatment. His parade of horribles is absurd.

Sotomayor: In EMTALA, mention of "the staff and facilities available" means if you don't have staff to provide the care or the facilities available then you can't provide the crae and a transfer has to take place.

The availability of staff and facilities not the availability of a law that permits a particular treatment, i.e., an abortion.

Jackson and Sotomayor are double teaming Idaho's attorney.

idaho atty is arguing that there's a legal availability requirement insofar as keeping a medical license in Idaho means complying with state law, but Sotomayor says this turns preemption on its head because there can be no state licensing law conflicts with federal law.

Sotomayor: The whole purpose of preemption is to say if a state passes a law that violates federal law, the state law is not effective. So there's no state licensing law that could permit the state to say don't treat diabetics with insulin. If a doctor looks at a juvenile diabetic and says insulin is required. If Idahol law prohibited use of insulin, federal law would say the doctor must treat the patient with insulin.

Sotomayor with a long hypo here. lol

Dangit that's Kagan, not Sotomayor.

I swear those two women sound so similar that I often confuse them. My bad.

Jackson: EMTALA says you must provide whatever treatment you have the capacity (staff and facilities) to provide to stabilize patients experiencing emergency medical conditions.

Idaho law says you can't provide that treatment unless doing so is necessary to prevent the patient's death.

WHY IS THAT NOT A DIRECT CONFLICT.

(IT IS.)

Kagan: EMTALA didn't address standards of care. It left that to the medical community Congress wasn't going to address every treatment for every condition. Just do what you have to in order to ensure non-deterioration of health.

Do you concede that with respect to certain medical conditions, abortion is the standard of care.

Idaho atty: says no then backtracks. He says the standard of care is set and determined by state law.

Kagan: Well yes it is because your own supreme court has acknowledged that if a condition gets bad enough, then doctors are supposed to give abortions.

Kagan with the ABORTION IS HEALTH CARE**, ELBOW DROP.

**motherfuckers

Federal law says that you don't have to wait until the pregnant person is on the verge of death. If the woman is going to lose her reproductive organs, that triggers the duty to stabilize the patient and the way to stabilize the patient all doctors agree that abortion is the treatment.

Bottom line is that these abortion hostile states like Idaho don't think abortion is healthcare... BUT IT IS.

Sotomayor (NOT KAGAN, GEEZ IMANI) gave multiple examples of patients having catastrophic emergencies that won't cause death but that will affect the person's future capacity to have children and asks "abortion yes or no."

Idaho's atty (his name is Turner) sounds really callous in the face of Sotomayor's hypotheticals.

Barrett jumped in to try to help the Idaho atty by saying 'those abortions would be covered, right?'

Roberts asked who would be the one to decide if treatment is allowed under EMTALA.

Turner says it would be the doctor's medical judgment based on good faith, not an objective standard.

The issue of medical judgment vs. good faith judgment is a huge one because different states have different standards of judgment.

If a doctor exercises their judgment, another doctor expert witness at trial could question that. That's a BIG problem here. That's why doctors are afraid to provide abortions. They may have an overzealous prosecutor come behind them and disagree.

Sotomayor: Pregnant patients will present with a serious medical condition that doctors in good faith can't say will present death but will present potential loss of an organ or serious medical complications, they can't perform those abortions. is that what you're saying?

Turner: If that hypothetical exists, then yes Idaho law says abortions in that care ARE NOT allowed. He says he can't think of such a condition though. (is he a doctor? nope.)

i was concerned i misheard the lawyer, but yeah: he said those abortions would not be allowed.

https://x.com/stevenmazie/status/1783142726508384420

Kagan: there are standards of medical care exist right? In certain tragic circumstance as your own state law acknowledges when a woman's life is in peril, abortion is apporpirati standard of care.

Turner: yes.

Kagan: EMTALA standard goes further. The law has to be about protecting the woman's health not just life, yes?

Turner says no. He won't admit that even though it's true. He's disputing that there's a medical standard of care that would allow an abortion if a woman was going to lose her repro organs. It's ridiculous.

It's a fundamentally callous position.

KAGAN: THE ABORTION EXCEPTIONALISM HERE IS ON THE PART OF THE STATE.

meaning, they're trying to carve abortion out of the realm of health care that might be required sometimes. Idaho won't admit that.

(I think Kagan's remark this is a direct dig at Alito and Thomas who have complained for a decade about the liberal justices and abortion exceptionalism.)

Gorsuch is up.

He's the first to ask about whether the patient is both the patient AND the unborn child.

HEY NEIL? FETUSES CAN'T CONSENT OR DENY HEALTH CARE.

TURNER: it would be weird for congress to amend the statute to require care for the unborn child regardless of what's going on with the mother.

It would be weird for Congress to have regard for the unborn child but then mandate termination of the unborn child.

IT'S NOT WEIRD, NEIL.

Congress wanted to make sure that if a pregnant patient presented with a problem with her "unborn child" that care would be provided at the ER. The care offered to the unborn child flows through the person carrying it—the pregnant patient.

IT'S NOT COMPLICATED. FFS.

IT'S MY OPINION THAT IF A PERSON'S MENTAL HEALTH WILL BE SO AFFECTED BY CARRYING A PREGNANCY TO TERM, THEN ABORTION IS STABILIZING TREATMENT.

PEOPLE MAY NOT AGREE. PEOPLE MAY THINK I'M PARROTING RIGHT WING TALKING POINTS, BUT THAT'S WHAT I THINK.

WHY SHOULDN'T MENTAL HEALTH BE A CONSIDERATION?

Now, can I think of a situation where that would happen? A woman walks into an ER saying "I will shoot myself if I have to carry this pregnancy to term?" When does that happen except on like Grey's Anatomy.

But if it WERE to happen?

Then yeah. Abortion. And I stand by that.

The administration has said "well no that's not going to happen" anyway in a footnote.

And Amy Coney Barrett seems to be annoyed that we're even here.

ACB: I can understand Idaho's point that a mental health exception would be broader than available state law. But the stabilization requirement only exists up until transfer is possible. So hard to see with a mental health condition that couldn't be stabilized before needing an abortion. You're not immediately going to be suicidal.

ACB actually making sense here.

Idaho atty insisting that the abortion would provided to that suicidal patient IMMEDIATELY.

ACB says, no not if transfer is possible.

Now Turner is arguing with ACB about what stabilization requires and when.Turner is arguing that the abortion would have to be performed right then and there.

Whatever guy.

Jackson: I'm surprised to hear you say that Idaho law permits everything that federal law requires.

If that's the case, why couldn't ER physicians just ignore idaho law and follow federal law.

She's peppering him with questions, he's trying to dodge, and she's not letting him.

Jackson: I thought this case was about preemption and the entirety of our preemption jurisprudence is the notion that the federal govt can make policy pronouncements that differ from what the state wants and the supremacy clause says that what federal law says takes precedent.

To what extent can the federal govt override the state standard. How can you be consistent with our preemption jurisprudence and saying otherwise.

Solicitor General Prelogar is up and she is always exceptional.

It's worth giving @stevenmazie a follow. His thread is really great.

https://x.com/stevenmazie/status/1783149824562655740

Thomas has a lot to say suddenly. Starts off by asking if there are other laws that preempt state criminal laws.

Prelogar responds by noting there are several cases were the federal government is protecting its interests.

I like how Thomas is acting like a caveman justice here.

"Supremacy Clause? What's that. I'm not familiar with your supremacy clauses. I'm just a caveman justice. I was unfrozen in 1991."

Now Alito is arguing about the spending clause.

Prelogar: Idaho wants to accept medicare funding but not have to meet the conditions attached.

Alito responds: I don't understand the theory. hahahaha.

what a punk.

Alito is an intellectual lightweight when compared with SG Prelogar.

Full stop.

Alito: Does the term "health" in EMTLA mean physical health or mental health.

Prelogar: Abortion could never be a stabilizing treatment. It wouldn't do anything for brain chemistry.

i think the main point here is that the immediate treatment that would be required is stabilizing mental health treatment and then a transfer to psych. But I am really opposed to the prevailing narrative that abortion cannot be treatment for mental health crises.

In so many state laws, a "substantial impairment" to health does not include mental health and it should.

https://x.com/AngryBlackLady/status/1783146196816769245

(Anyway, on this note, I will be providing a correction to a TikTok about mental health and EMTALA that I dropped a few weeks ago. That means more boxing later today! Wheeee!)

ACB: Asked about the Hyde Amendment and whether or not a federally-funded hospital would have to provide care.

(Hyde prohibits taxpayer funds for abortion.)

Prelogar: Yes. THere's no conflict with EMTALA.

The boys on the court really won't stop talking about the spending clause.

Prelogar: In Idaho doctors have to close their eyes to everything but death.

Under EMTALA, doctors have to consider other health crises (organ failure; fertility loss; etc.)

Premature rupture of the membranes, for example, won't kill a patient, the fetus won't survive, but at that point she has no signs of infection, so there's no concern about death just yet. Idaho says no abortion in this case.

Women in Idaho are being airlifted to SLC and neighboring states because doctors are facing mandatory minimum 2 years in prison and loss of license because they fear that a prosecutor looking over their shoulder won't second guess that maybe the abortion wasn't really necessary to prevent death.

THIS IS WHAT I KEEP SAYING.

i KNEW ALITO was going to bring up the fact that EMTALA includes the phrase "unborn child" into the statute.

I just knew it.

Alito wants to know if the use of the term unborn child tells us something. (HE's implying that the unborn child is a person as a matter of law and a patient.)

Prelogar: No my guy. It tells us that Congress wanted to expand protection of EMTALA to unborn child. It doesn't suggest that Congress displaced the obligation of the doctor to independently treat the pregnant patient.

Prelogar: The statute didn't nothing to displace the pregnant woman as the patient when her health or life is in danger.

In many of the cases you're thinking about because there's no way to stabilize the unborn child because the fetus is before viability

Alito is trying really hard to cabin Prelogar in and she's not having it.

He keeps insisting that there's a duty to the child.

But there isn't!

He's whining and getting annoyed.

Prelogar: The duty under EMTALA runs to the pregnant woman, not to the fetus. The woman doesn't have to accept the abortion as stabilizing treatment. These are tragic circumstances.

Alito still poking at her and its kind of embarrassing.

Prelogar: The duty runs to the individual with the emergency medical condition. The statute makes clear that's the pregnant woman. Congress wanted to protect her when she's suffering an emergency when her health isn't at risk but the fetus is in grave distress like with a prolapsed umbilical cord.

Alito is being a real punk. "Nobody is saying the woman isn't an individual."

Prelogar is all "that's basically what you just said, my guy."

Prelogar says EMTALA was passed to stop patient dumping (dumping indigent patients at other hospitals.)

Prelogar points out that what Idaho is doing is patient dumping of a different sort. It's dumping pregnant patients who need abortions for health reasons on to other hospitals.

Kavanaugh needs to go the Thomas route from his early days on the Court and just remain silent.