". . . and having done all . . . stand firm." Eph. 6:13


How the Biden Administration Turned a Pro-Life Law into an Abortion Mandate

June 29, 2024

There’s been a lot of confusion over what the U.S. Supreme Court decided last week on the future of Idaho’s pro-life law. What do emergency rooms have to do with a policy protecting life at conception? And was The Gem State actually abandoning women who needed abortions to save their lives? Finally, was it a victory for the Biden administration and the Left, or does remanding it back to the Ninth Circuit give pro-lifers hope that the law will be upheld? Family Research Council President Tony Perkins cut through the media’s spin and the opinion’s murkiness with Alliance Defending Freedom’s John Bursch on Thursday on “Washington Watch.”

TONY PERKINS: [Thursday], the U.S. Supreme Court released its decision in a highly anticipated case where Idaho’s law protecting unborn children was at question. The court announced that it had declined to rule on the merits of the case but instead sent the case back to the U.S. Court of Appeals in the Ninth Circuit for further consideration. So the question is: Is the Supreme Court sidestepping the issue? What does this mean for unborn babies in the state of Idaho? Well, here to unpack this is John Birch. He’s the Alliance Defending Freedom’s vice president of Appellate Advocacy and the senior counsel at ADF. ADF was instrumental in assisting Idaho Attorney General Raul Labrador (R) in this case. John, welcome back to ‘Washington Watch.’ … So what exactly does the Idaho law say? First, let’s start there.

JOHN BURSCH: Idaho law protects life beginning at conception — with an exception to save the life of the mother. That’s always been clear. Everybody’s understood what that’s meant. And after [the] Dobbs [decision that overturned Roe v. Wade, it was supposed to go fully into effect. The federal government, in response to Dobbs, has taken a federal law, the Emergency Medical Treatment and Active Labor Act, known as EMTALA. And that’s simply a law that requires hospitals that receive Medicaid to treat indigent patients who critically need care when they show up at the emergency room. And the administration took that and turned it into an abortion mandate. And then they sued the state of Idaho to try to guarantee that emergency rooms could be abortion enclaves, even in a pro-life state like Idaho. And so that’s the case that came to the Supreme Court.

PERKINS: And the Biden administration argued that the Constitution’s Supremacy Clause gave this federal provision the ability to trump what the state had done in this pro-life law.

BURSCH: Exactly. That was their position. But there were a couple of problems with that. The Supremacy Clause only kicks in if there is a conflict between federal law and state law. And here, there was no conflict because federal law and state law. Both [aim] to preserve life, not take it. In fact, there’s nothing in the federal statute EMTALA that even says a word about abortion. To the contrary, it treats the unborn child as an additional patient that emergency room doctors have to care for. So Idaho’s position all along has been no conflict, no supremacy clause.

PERKINS: And so that actually came out in the oral arguments, the Biden administration admitting some things that showed that this was not in conflict. Therefore, the court threw this back to the Ninth Circuit. Why didn’t the court just deal with the merits of the case?

BURSCH: Well, that’s a good question, and we’ll never know for sure. But the way the controlling opinion — [the] three-justice concurrence written by Justice [Amy Coney] Barrett, joined by Chief Justice [John] Roberts, and Justice Brett Kavanaugh — the way they explained it is that the case had morphed because of the federal government’s admissions. And after the Biden administration admitted that abortions were not required in numerous circumstances, that essentially Idaho’s law remains almost entirely intact, [then] they said that the injunction the lower courts had ordered would do not stop Idaho from enforcing its law in the vast majority of circumstances. So what went from a really broad dispute about abortion enclaves and emergency rooms became a very narrow one, and those justices thought this needed some further deliberation by the Ninth Circuit before they made a final decision. And so we’ll take those concessions. They’re absolutely terrific for protecting life — not only in Idaho, but in pro-life states around the country. And we’ll keep litigating back in the Ninth Circuit. And if we have to come back to the Supreme Court, we’ll do that.

PERKINS: Well, it would suggest by one of the comments from one of the more liberal justices, Justice Ketanji Brown Jackson … she said this while the court dawdles and the country waits, ‘pregnant people experiencing emergency medical conditions remain in precarious position,’ and she lamented that this was not the end of it. … By the way, I think that’s interesting [that she said] ‘pregnant people.’ I think only women get pregnant. But that’s another topic. So it would suggest that she sees that the federal government is on very, very thin ice in terms of trying to stop this law.

BURSCH: I think that’s right. And Justice [Samuel] Alito wrote a dissent, joined by Justice [Clarence] Thomas and Justice [Neil] Gorsuch, that really laid out Idaho’s position and explained why Idaho was correct and that the Supreme Court could rule in favor of them right now, just based on the simple statutory text. And, you know, the majority of the justices didn’t think that was appropriate. They wanted to give this a little bit more process. But that does signal where the court is likely headed if this has to come back a second time — either because this case goes down to the Ninth Circuit and comes back up again, or because a very similar case out of the Fifth Circuit [bubbles up], which ruled against the Biden administration and in favor of Texas and some pro-life doctors. ADF [is arguing] there too [that] the EMPALA rule was an invalid interpretation of the federal Medicaid Act.

PERKINS: Well, when you look at the application of this EMPALA, the Emergency Medical Treatment and Labor Act, this shows that there’s clearly those [on the Left] that want to make abortion a federal issue. So this, I think, undermines the idea that a state can be pro-life and not be molested by the federal government. There is still federal intervention when it comes to the issue of life.

BURSCH: Absolutely. After the U.S. Supreme Court [overturned Dobbs], I’ve said definitively that now the people in every state would get to decide what their pro-life policies would be. Then the Biden administration walks in, takes a statute that had nothing to do with abortion, that requires protection of the unborn child, and turns it into a federal abortion mandate. And so, unfortunately, that’s one of many actions this administration has taken to basically force on states abortion rights that don’t exist anywhere in the federal code. And until they get reined in and learn their lesson, I think they’re going to keep doing it. And that’s a really a harm to democracy. It’s a harm to the rule of law, and it’s a harm to unborn children.