‘Untenable’: Lawyer Discusses Idaho’s Restrictions On Emergency Abortion Care With Clarence Thomas

4 months ago

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Transcript

00:00 General Preliger. Mr. Chief Justice, and may it please the court,

00:04 Emtala's promise is simple but profound. No one who comes to an emergency room in need of urgent

00:11 treatment should be denied necessary stabilizing care. This case is about how that guarantee applies

00:17 to pregnant women in medical crisis. In some tragic cases, women suffer emergency complications

00:23 that make continuing their pregnancy a grave threat to their lives or their health. A woman

00:28 whose amniotic sac has ruptured prematurely, for example, needs immediate treatment to avoid a

00:33 serious risk of infection that could cascade into sepsis and the risk of hysterectomy.

00:38 A woman with severe preeclampsia can face a high risk of kidney failure that could require

00:43 lifelong dialysis. In cases like these where there is no other way to stabilize the woman's medical

00:49 condition and prevent her from deteriorating, Emtala's plain text requires that she be offered

00:54 pregnancy termination as the necessary treatment. And that's how this law has been understood and

00:59 applied for decades. That usually poses no conflict with state law. Even states that have sharply

01:05 restricted access to abortion after dobbs generally allow exceptions to safeguard the mother's health.

01:11 But Idaho makes termination of felony punishable by years of imprisonment unless it's necessary to

01:17 prevent the woman's death. I think I understood my friend today to acknowledge several times that

01:22 there is daylight between that standard and the necessary stabilizing treatment that Emtala would

01:26 require. And the Idaho Supreme Court recognized the same thing when it specifically contrasted

01:31 the necessary to prevent death exception and said it was materially narrower than a prior Idaho law

01:37 that had a health exception that tracked Emtala. The situation on the ground in Idaho is showing

01:42 the devastating consequences of that gap. Today, doctors in Idaho and the women in Idaho are in an

01:48 impossible position. If a woman comes to an emergency room facing a grave threat to her

01:53 health but she isn't yet facing death, doctors either have to delay treatment and allow her

01:57 condition to materially deteriorate or they're airlifting her out of the state so she can get

02:03 the emergency care that she needs. One hospital system in Idaho says that right now it's having

02:08 to transfer pregnant women in medical crisis out of the state about once every other week.

02:13 That's untenable and Emtala does not countenance it. None of petitioners' interpretations fit with

02:19 the text and so they have tried to make this case be about the broader debate for access to abortion

02:24 in cases of unwanted pregnancy. But that's not what this case is about at all. Idaho's ban on

02:30 abortion is enforceable in virtually all of its applications. But in the narrow circumstances

02:35 involving grave medical emergencies, Idaho cannot criminalize the essential care that Emtala requires.

02:41 I welcome the court's questions. General, are you aware of any other spending clause legislation

02:50 that preempts criminal law? With respect to criminal law in particular, Justice Thomas,

02:57 I'm not immediately thinking of relevant cases. We have a whole string side of cases in our brief

03:01 at page 46 that reflect times where the court has recognized the preemptive force of spending

03:06 clause legislation, including in situations where the funding restrictions apply to private parties

03:11 so that could include the Coventry health case, for example. Lee Deadwood is another example of

03:16 this. But I'm not immediately recalling how that would apply in criminal law. Of course, this court

03:20 hasn't drawn those kinds of distinctions in recognizing the force of the supremacy clause.

03:24 Now, normally when we have a preemption case, it's a regulated party who is involved in the suit and

03:34 they use it as an affirmative defense, for example, in Wyeth or something. In this case, you

03:43 are bringing an action against the state and the state's not regulated. Are there other examples of

03:50 these types of suits? Sure. I mean, there are numerous examples where the United States has

03:55 sought to protect its sovereign interests in situations where a state has done what Idaho

03:59 has done here and interposed a law that conflicts. So I'd point to Arizona versus United States as

04:04 an example of that. United States versus Washington. There are a number of cases where this

04:09 court has recognized that the federal government can protect its interests in this kind of preemption

04:13 action. And as I mentioned before, the court has a long line of cases recognizing that that

04:18 preemption principle applies in the context of federal funding restrictions that apply to private

04:23 parties too. But even when the party that you're bringing the action against is not the regulated

04:29 party? That's correct, because what Idaho has done here is directly interfered with the ability of

04:34 the regulated parties who have taken these funds, federal funds with conditions attached, from being

04:39 able to comply with the federal law that governs their behavior. Now, this was an essential part

04:43 of the bargain that the federal government struck with hospitals in substantially investing in their

04:47 hospital systems. And what the state has done is said, you, through our operation of state law,

04:53 are no longer permitted to comply with this fundamental stabilization requirement in

04:56 Emtala in this narrow category of cases. Well, normally, wouldn't it be the regulated party

05:03 that would actually be asserting the preemption that you're talking about?

05:08 Certainly, I can imagine situations, for example, where a regulated party would assert

05:13 a preemption defense and to say the state law itself is preempted to the extent that it prevents

05:18 that party from being able to comply with federal law. But I'm not aware of any principle or

05:22 precedent in this court's case law to suggest that that's the only way for the government to

05:26 protect its sovereign interests. That is the normal way, though.

05:28 I think that that's often the fact pattern of particular cases.

‘Untenable’: Lawyer Discusses Idaho’s Restrictions On Emergency Abortion Care With Clarence Thomas

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