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


‘We’re Going to Win’ on Pro-Life Law after SCOTUS Setback: Idaho AG

June 28, 2024

In yet another Supreme Court case ruined by a leak, justices on Thursday morning allowed the Biden administration to override a state pro-life protections law in the name of providing “emergency health care.”

Justices voted 5-4 to punt on hearing the case over Idaho’s pro-life protection, issuing a “dismiss as improvidently granted” (DIG) order. The one-sentence court order was followed by four opinions running the gamut of judicial views on abortion and federal power. The action came one day after the high court confirmed it momentarily posted a copy of the order on its website, which was caught by Bloomberg News — the second leak of an abortion decision since 2022.

After the Supreme Court overturned Roe v. Wade with the Dobbs decision, Idaho adopted the Defense of Life Act, which protects all unborn life unless a doctor believes “abortion was necessary to prevent the death of the pregnant woman,” as well as allowing any procedure carried out in response to an ectopic pregnancy or after the child had already died from a spontaneous miscarriage.

As part of its administrative efforts to limit regulation of the abortion industry, the Biden administration sued the state on the grounds that the new bill violated the Emergency Medical Treatment & Labor Act (EMTALA). That bill, signed by pro-life President Ronald Reagan in 1986 with the intent of assuring emergency rooms would not turn away indigent patients, forbids doctors from carrying out any procedure that “may pose a threat to the health or safety of the woman or the unborn child.” Yet the Biden administration used EMTALA in an effort to pry open Idaho’s emergency rooms to abortion, arguing that an abortion may be necessary to preserve the “health” of the mother, so EMTALA may require doctors to perform abortions.

U.S. District Judge B. Lynn Winmill, a Clinton appointee, sided with the Biden administration, forcing the more liberal abortion regimen on ER doctors. Idaho contested the case to the Ninth Circuit Court of Appeals but, before the appellate court could weigh in, lodged an emergency petition with the U.S. Supreme Court. On January 5, justices accepted the case and issued a stay on Winmill’s order, allowing the Defense of Life Act to take effect. Oral arguments for the case, Moyle v. United States ran an unusually long one hour and 53 minutes on April 24.

In the end, justices decided they had been wrong to take the case and sent it back to the Ninth Circuit Court of Appeals.

“It seems, after two years of hatred from the Left over the decision in Dobbs, the court opted to tap out instead of standing bravely in defense of the constitutional right of the people of Idaho to make laws protecting the unborn,” Mary Szoch, director of the Center for Human Dignity at the Family Research Council, told The Washington Stand. But “the justices couldn’t seem to agree why they shouldn’t have taken the case.”

The court’s liberal bloc would have let Winmill’s abortion-liberalizing order hold as the case wound its way through the courts, finding Idaho’s pro-life law unworthy of judicial protection. “Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute,” wrote Justice Elena Kagan in an opinion joined by Sonia Sotomayor. (Ketanji Brown Jackson joined a different part of the opinion.) Their opinion neatly reproduced the argument of the Biden administration. “EMTALA requires a Medicare-funded hospital to offer an abortion when needed to stabilize a medical condition that seriously threatens a pregnant woman’s life or health,” asserted Kagan. “And on rare occasions that means providing an abortion.” That nearly echoes a July 2022 guidance that was issued by the Biden administration’s Department of Health and Human Services (HHS) claiming that EMTALA requires doctors to carry out “[s]tabilizing treatment,” which could include “abortion ... irrespective of any state laws or mandates that apply to specific procedures.”

Perhaps the court’s most extreme liberal, Jackson, would have settled the case at once in the Biden administration’s favor. Jackson referred to the court order allowing the Defense of Life Act to take effect as a “months-long catastrophe.” Jackson justifies her opinion in a cliché-ridden paragraph stating: “We cannot simply wind back the clock to how things were before the Court injected itself into this matter. … It is too little, too late for the Court to take a mulligan. … The Court has made this bed so now it must lie in it.”

The court’s center-right coalition also moved to remand the case, but for different reasons. Justice Amy Coney Barrett — joined by Chief Justice John Roberts and Brett Kavanaugh — argued that circumstances had changed, because “the shape of these cases has substantially shifted” since the court accepted the case. Namely, the Biden administration made “important” concessions to Idaho.

Idaho believed the Biden administration would exploit Roe’s companion case, Doe v. Bolton, to define the “health of the mother” to include everything from imminent loss of an organ to unspecified mental and emotional health issues. In practice, Doe’s “health of the mother” exception justified abortion for virtually any reason after the point of viability. But in oral arguments, Solicitor General Elizabeth Prelogar conceded that a mental health crisis of any severity “could never lead to pregnancy termination, because that is not the accepted standard of practice to treat any mental health emergency.” This is “a major win for the pro-life movement, as over the last 50 years, countless abortions have been performed under the guise of protecting the mental health of the mother,” Szoch told TWS. She also relented on threats to compel Christian health care professionals to take part in abortions. “The Biden administration has spent the last four years working to erode and eliminate those protections,” she said.

Idaho also clarified the rumors spread by the abortion industry — that the law barred abortion unless a woman’s death is imminent, and that it would lead to massive malpractice lawsuits, were false. Doctors can carry out an abortion “as long as they’re exercising a good-faith judgment that the complication could lead to death … even if it’s not immediate,” Idaho Attorney General Raúl Labrador told TWS during a conference call. “I think some people, in bad faith, have tried to confuse these doctors.”

Doctors say the law clearly and consistently affirms all life, born and unborn.Throughout my 30-year career, EMTALA has never confused me or my obstetric peers when providing emergency care, especially considering 90% of obstetricians do not perform elective abortions. I have always — before Dobbs, and since— been able and willing to intervene if a pregnancy complication threatened my patient’s life, and every state pro-life law allows us to act. Forcing doctors to end an unborn patient’s life by abortion in the absence of a threat to his mother’s life is coercive, needless and goes against our oath to do no harm,” said Dr. Ingrid Skop, a medical doctor and vice president and director of Medical Affairs at the pro-life Charlotte Lozier Institute, in a statement emailed to TWS.

“Idaho’s life-saving law, like every other pro-life protection across the country, allows for maternal-fetal separation when a mother faces emergency complications related to pregnancy. This protection puts the law in line with EMTALA, not in conflict with it,” Dr. Christina Francis of the American Association of Pro-Life OB-GYNs (AAPLOG) told TWS. “The reality is that a pro-life state can protect both preborn children from the violence of abortion and their mothers who face medical emergencies,” said Texas Right to Life President Dr. John Seago in a statement emailed to TWS.

Finally, the originalist bloc would have voted immediately in favor of Idaho. “Far from requiring hospitals to perform abortions, EMTALA’s text unambiguously demands that Medicare-funded hospitals protect the health of both a pregnant woman and her ‘unborn child,’” wrote Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch. Alito also said the Biden administration’s reliance on Medicare funding set up a slam-dunk argument for Idaho: States cannot be compelled to violate their own laws under the Constitution’s Spending Clause. “[E]ven if there were some ambiguity in the statutory text, we would be obligated to resolve that ambiguity in favor of the [s]tate [of Idaho] because EMTALA was enacted under the Spending Clause, and as we have held time and again, conditions attached to the receipt of federal funds must be unambiguous,” he wrote.

By overriding the voters of “Idaho’s judgment about a difficult and important moral question … the preliminary injunction thwarts the will of the people of Idaho as expressed in law by their elected representatives,” wrote Justice Alito. Attorneys for the State of Idaho had argued the state would “turn emergency rooms into federal abortion enclaves.”

The case now returns to the Ninth Circuit Court of Appeals, where the state intends to prevail.

“Today, the court said that Idaho will be able to enforce its law to save lives in the vast majority of circumstances while the case proceeds,” said Labrador in a statement sent to TWS. “I remain committed to protect[ing] unborn life and ensur[ing] women in Idaho receive necessary medical care, and I will continue my outreach to doctors and hospitals across Idaho to ensure that they understand what our law requires. We look forward to ending this administration’s relentless overreach into Idahoans’ right to protect and defend life.”

Pro-life and pro-abortion activists alike said Thursday’s order highlights the importance of the 2024 election. “The Supreme Court’s decision not to decide the fate of Idaho’s pro-life law makes it clear that protecting the life of unborn children will not be left to the states,” said Family Research President Tony Perkins. March for Life President Jeanne Mancini agreed. “We are disappointed that the Supreme Court will allow the Biden administration to hijack EMTALA to advance its radical abortion agenda,” Mancini told TWS. “Today’s decision is a reminder that pro-abortion politicians will stop at nothing to force abortion extremism through federal law, which is why we need to stand for pro-life protections for women and children on both the state and federal level.”

Attorney General Merrick Garland confirmed after the decision, “The Justice Department will continue to use every available tool to ensure that women in every state have access to” abortion.

“Trump and his MAGA minions want to punish women,” asserted a Democratic National Committee spokesperson, Maddy Mundy. Not to be outdone, President Joe Biden implied the GOP wants women to die. Barring doctors from preventing necessary care to fragile women is “all part of Republican elected officials’ extreme and dangerous agenda to ban abortion nationwide, and put women’s health and lives at risk,” charged Biden in a statement after the court (officially) released the opinion.

SBA Pro-Life America State Policy Director Katie Daniel dismissed the Biden administration’s lawsuit as “a PR stunt to spread the lie that pro-life laws prevent women from receiving emergency care. It is clear?that the abortion lobby has created confusion on this fact for political gain and Democrats have to rely on this false talking point because their agenda for all-trimester abortion is wildly unpopular with support from only 10% of Americans.”

The complementarity of state and federal law took center stage during oral arguments. “Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” asked Justice Alito, who authored the Dobbs decision. “Have you ever seen an abortion statute that uses the phrase ‘unborn child?’” An ordinary reading of the law reveals “the plain meaning is that the hospital must try to eliminate any immediate threat to the child,” he said. “Abortion is antithetical to that duty.”

Labrador told “Washington Watch” the Biden administration’s legal argument “turns EMTALA on its head” and called Biden’s lawsuit an egregious example of “lawless overreach.”

Numerous lawmakers and commentators agreed the purported conflict between EMTALA and Idaho law was illusory. Family Research Council, the parent organization of this website, encouraged congressmen to sign onto an amicus curiae brief to that effect. The brief — led by Senators Mike Crapo and James Risch and Reps. Russ Fulcher and Mike Simpson (all R-Idaho) — stated, “EMTALA’s text and legislative history is pro-women and pro-unborn children.”

“The question of whether EMTALA requires a physician to perform an abortion regardless of the fact that Idaho law explicitly protects unborn children, should have been answered with a resounding no,” Szoch told TWS. Sarah Parshall Perry, a senior legal fellow, and Melanie Israel, a visiting fellow, called the ruling “disastrous.” No lawmaker, much less pro-life President Ronald Reagan, passed EMTALA “to mandate a national hospital abortion policy,” they said.

Labrador said he expects the issue of EMTALA and federal preemption of state pro-life laws “will return to the Supreme Court” in “some form,” whether in his own case of that of Texas v. Becerra, recently decided by the Fifth Circuit Court of Appeals.

“We feel very strongly that we’re going to win this case in the end,” Labrador told TWS.

For now, Szoch hopes Christian readers will “pray that the Ninth Circuit will recognize that the federal government cannot simply override the rights of the people of Idaho to protect their littlest citizens.”

Ben Johnson is senior reporter and editor at The Washington Stand.