The massive constitutional implications of the Idaho abortion case

The Supreme Court heard oral argument last week in Idaho v. United States, a case that pits state law against federal law in a clash between a strict abortion ban and the protection of women’s health in emergency situations. Unlike Roe v. Wade and Dobbs v. Jackson Women’s Health Organization, which addressed whether women have a constitutional right to decide for themselves whether to terminate a pregnancy under the Due Process Clause of the Fourteenth Amendment, this case is about statutory law.

Idaho enacted a statute that bans emergency care that includes pregnancy termination except to save the life of the mother. Under the federal Emergency Treatment and Labor Act (EMTALA), hospitals that receive federal funding must provide “stabilizing treatment” for “emergency medical conditions” — even if it ends the pregnancy.

The space between being “near death’s door” and at “actual death’s door” is what the dispute is all about: Who gets to draw the line, the state of Idaho or the federal government? How the court answers that question has implications that are hard to even fathom.

If the court sides with Idaho, at least a dozen additional states’ draconian anti-abortion laws would also swallow EMTALA, forcing pregnant women who need urgent medical treatment in those states to go elsewhere. As Justice Elena Kagan noted at oral argument, in Idaho alone six severely ill women have already been airlifted by helicopter out of the state for emergency care this year. The penalty for getting the “near death” calculus wrong under Idaho’s current law is five years in prison. For physicians, the risk that a prosecutor might disagree with a medical judgment and bring charges — even if that judgment was medically and ethically correct — is harrowing.

Congress enacted EMTALA to ensure that hospitals participating in Medicare provide emergency services to patients regardless of their ability to pay. The law responded to so-called “patient dumping,” which occurred when a hospital with the capacity to treat someone refused because the patient couldn’t pay, prompting the hospital to “dump” that individual on another facility. The Idaho case raises the question of whether states with stringent abortion laws can nonetheless dump patients on other states that allow physicians to terminate pregnancies in order to protect the mother’s health.

It also raises two additional questions of vast constitutional importance: whether federal law still trumps state law under the Constitution, and whether Congress has the power to mandate emergency care in the first place. These are big-ticket items.

First, the Constitution’s Supremacy Clause states that “the Laws of the United States … shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” If a federal law and a state law conflict, the federal law is supposed to win.

Idaho argues that it’s possible for hospitals to comply with both the Idaho law and EMTALA, so there is no conflict. During oral argument, some of the conservative justices seemed sympathetic to that idea. But when asked by Justice Sonia Sotomayor whether a doctor could perform an abortion in Idaho to prevent a woman from losing an organ or having other serious medical complications, Idaho’s counsel said, “Idaho law does say that abortions in that case aren’t allowed.” If a Supreme Court majority sides with Idaho (which based on oral argument seems likely), how it will circumvent the Supremacy Clause — and the implications for the rest of constitutional law if it does — is unclear.

Second, the Spending Clause empowers Congress to pass laws that spend money — including money that goes to the states to effectuate federal programs, like Medicare. In general, the Supreme Court has construed the Spending Clause broadly, upholding statutes like EMTALA that impose conditions on states that receive federal funding, so long as the conditions are clear and related to the purposes behind the federal program.

In NFIB v. Sebelius, the case involving the Affordable Care Act, the court in 2012 added another Spending Clause requirement: Congress can’t impose conditions on states that are “coercive.” Under the ACA, if states refused to accept additional funding for Medicaid, they could lose all of it. The court found that bargain unconstitutionally coercive.

Idaho argues that EMTALA is a coercive infringement on states’ rights under Sebelius. It also claims that the conditions of the law, which was passed in 1986, are unclear. The government responds in its brief: “That EMTALA requires such participating facilities to provide essential emergency care is not … ‘coercion, destroying or impairing the autonomy of the states,’ but rather a targeted and ‘appropriate condition[]’ attached to a federal ‘spending program[]’ for hospitals.”

As for the question of clarity, the government adds, “Congress … would have had no reason to speak more ‘clearly,’ … to ensure that the requisite emergency care could include abortion care where appropriate: At the time of EMTALA’s enactment, after all, no State could have banned the abortions required by the [Idaho] statute.” Roe v. Wade was the law of the land then.

Justice Amy Coney Barrett asked Solicitor General Elizabeth Prelogar whether another administration could, under the Spending Clause, enact legislation that bans Medicare funding for hospitals that perform abortions or allow gender reassignment surgeries. Justice Neil Gorsuch wanted to know whether Congress could regulate the practice of medicine across 50 states. Prelogar said she believes there is ample authority for Congress to do both, and that such legislation enacted under the Spending Clause would preempt state law.

If the Supreme Court disagrees and enhances states’ ability to flout the will of Congress, this case could wind up rocking the nation for years to come.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works – and Why,” is out in September. Follow her @kimwehle.