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Opinion | How a Loss in the Emergency Abortion Case Could Become a Win for Biden

BusinessOpinion | How a Loss in the Emergency Abortion Case Could Become a Win for Biden


If you had asked me at the start of this Supreme Court term what the blockbuster abortion case would be, I would have focused on the one that could limit access to mifepristone, a drug used in a majority of U.S. abortions. But oral arguments last month suggested strongly that the justices might not even think that case has standing — which is to say, that decision is likely not to make much of a difference.

But a decision in the second case, on access to emergency abortions, may have much more profound consequences, both for November’s election and the ongoing struggle over reproductive rights. The case centers on the Emergency Medical Treatment and Labor Act, known as EMTALA, a federal law that was passed in the 1980s to prevent hospitals from turning away emergency-room patients who could not afford to pay. At issue is whether EMTALA requires physicians to offer emergency abortions even when state abortion bans — including those enacted after the overturning of Roe — do not permit them. The Biden administration brought suit against Idaho in federal court, arguing that federal law does pre-empt state policy on the matter.

Listening to Wednesday’s oral arguments, it was hard to say with certainty which side will prevail. But given the questions asked by the court’s conservative majority, and the fact that the court had allowed the state’s law to remain in effect during the litigation, the strongest possibility is that the court will side with Idaho. If that happens, pregnant women facing medical emergencies will be more likely to be refused care, and the Biden administration will face a searing reminder of the risks of litigating before the conservative Supreme Court supermajority. Such a loss for the Biden administration could, at the same time, provide a political opportunity for the Biden campaign — and that could matter deeply in the long term, given the high stakes of this election, not least for abortion access.

The decision will affect more than people seeking abortions. Just last week, The Associated Press detailed the stories of a wide range of patients experiencing pregnancy-related complications, including miscarriage, who were turned away by hospital emergency departments in states with criminal abortion laws. In such states, emergency rooms “are so scared of a pregnant patient, that the emergency medicine staff won’t even look. They just want these people gone,” Sara Rosenbaum, a health law and policy professor at George Washington University, told The A.P.

The Biden administration tried to prevent incidents like these around the country from snowballing by looking to EMTALA, issuing guidance just weeks after Roe was overturned asserting that the federal law pre-empts state law on this matter. The administration then took Idaho to court, arguing that EMTALA’s mandate to provide “necessary stabilizing treatment” required doctors to provide abortions to patients in medical emergencies — and that the federal statute trumps Idaho’s law, which makes it a crime to perform abortion except in cases of rape or incest or when “necessary to prevent the death of the pregnant woman.”

This move was a gamble, and not one the administration takes very often: Sooner or later, the case was likely to land the administration before the Supreme Court’s conservative supermajority, with its demonstrated hostility to abortion rights. And indeed, if the court sides with Idaho, that will serve as a powerful reminder that until the Supreme Court’s composition changes, being in federal court may blow up in any pro-choice president’s face.

If Idaho does win this case, there’s a question of how broad that opinion would be — or on what foundation the court will rely. That was difficult to parse on Wednesday. At a few points, Justices Samuel Alito and Neil Gorsuch cited language in EMTALA that refers to the “unborn child” — seeming to suggest that EMTALA does not require access to abortion in emergencies because it treats both fetuses and pregnant people as patients deserving of stabilizing treatment. This was a nod toward fetal personhood — the anti-abortion movement’s ultimate goal, to secure full legal rights for fetuses. But it seems unlikely the court will issue a decision that significantly advances the personhood cause in this case.

More likely is that the court rules on whether EMTALA creates a standard of care that requires physicians to protect the health of pregnant patients, as the Biden administration argues — or whether the statute imposes no limit at all on states like Idaho.

What is certain is that there will be more uncertainty for physicians and patients until the court hands down a decision, most likely in June.

An irony is that the politics of a loss in the Supreme Court could ultimately swing in President Biden’s favor, even as it compounds the dangers facing pregnant patients in states across the country. Donald Trump’s campaign strategy has been to cast abortion as an issue that has largely been resolved, at least at the federal level. That strategy makes sense: Most Americans disagree with the strict abortion bans Republicans have championed, and Mr. Trump would prefer the electorate focus on anything but abortion. Losing the EMTALA case could help Mr. Biden remind voters that overturning Roe was not the end of the anti-abortion movement’s project. It will be made clear once again that the Right may be able to keep turning to the Supreme Court to further roll back reproductive rights.

Such a loss would also be a reminder of the stakes of this election. Some of Mr. Trump’s supporters are hoping that if he is re-elected, he will lean on the Comstock Act — a 150-year-old law that criminalizes the mailing or receiving of a wide range of items deemed to be obscene — to effectively ban abortions nationwide. (That’s because all abortions in the United States involve instruments and other items sent by mail or common carrier.) If the Supreme Court holds that the Comstock Act can indeed be used in such a way — ignoring nearly a century of precedent — Mr. Trump’s Department of Justice will decide whether to initiate prosecutions against drug companies, providers, or even women who mail or receive abortion-related items.

A second Biden administration may be more cautious about defending reproductive rights if it loses the EMTALA case. But the impact of losses like the one that seems to be coming in this case will sting less for reproductive rights supporters if Mr. Biden remains in office. In the case of the Comstock Act, for example, Mr. Biden’s Department of Justice would almost certainly not prosecute abortion providers and patients, regardless of how the court interprets the 1873 obscenity statute.

A loss in the EMTALA case may not convince some voters to overcome the skepticism with which they view Mr. Biden. But it will make abundantly clear that whatever Mr. Trump may suggest, the abortion struggle at the federal level is not over by a long shot.

Mary Ziegler is a law professor at the University of California, Davis, and the author of “Roe: The History of a National Obsession.”

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