To convince the Supreme Court that the Biden administration could use federal Medicare funding to force hospitals to perform abortions in violation of Idaho law, Solicitor General Elizabeth Prelogar conceived and gave birth to some unusual arguments Wednesday.
She reached for a 129-year-old precedent that crippled the labor movement for decades, neutered legal obligations to the “unborn child” in the federal law that allegedly requires abortions in certain situations, and didn’t deny a Republican administration could use her rationale to functionally ban abortion and even transgender care nationwide.
Such is the federal government’s interest in ensuring that abortion-minded women can use emergency rooms to terminate pregnancies as conservative states approve new abortion restrictions, or reinstate old ones, under the high court’s reversal of Roe v. Wade in 2022.
Backed by 22 conservative states and sued by the feds, Idaho challenged the Biden administration’s use of the Emergency Medical Treatment and Labor Act as a “super-statute” that overrides its Defense of Life Act, which includes criminal penalties and loss of license, and “turns emergency rooms into a federal enclave where state standards of care do not apply.”
While Prelogar faced skepticism from GOP-appointed justices about the massive expansion of federal power her argument implied, a recurring point of confusion for the whole bench was how much “daylight” stood between EMTALA, designed to stop “patient-dumping,” and Idaho’s law.
The former requires “immediate medical attention” when the health of the individual or “unborn child” would otherwise face “serious jeopardy, serious impairment to bodily functions, or serious dysfunction of bodily organs.” The latter has one health-related abortion exception: “necessary to prevent the death of the pregnant woman.”
Hellbound and Down 