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The enormous constitutional implications of the Idaho abortion case

The Supreme Court last week heard oral arguments in Idaho v. United States, a case pitting 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 examined 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 about legal law.

Idaho has enacted a statute banning emergency care, including termination of pregnancy, except to save the life of the mother. Under the federal Emergency Treatment and Labor Act (EMTALA), hospitals receiving federal funding must provide “stabilizing treatment” for “urgent medical conditions” – even if it means terminating the pregnancy.

The space between “near the door of death” and “the door of actual death” is what the dispute is 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 difficult to fathom.

If the court sides with Idaho, the draconian anti-abortion laws of at least a dozen states would also swallow EMTALA, forcing pregnant women in need of urgent medical treatment in those states to go elsewhere. As Justice Elena Kagan noted during oral argument, in Idaho alone this year, six seriously ill women have been flown out of the state by helicopter for emergency care. The penalty for misusing the near-death bill is five years in prison under current Idaho law. For doctors, the risk that a prosecutor might disagree with a medical assessment and file charges – even if that assessment was medically and ethically correct – is dire.

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 could not pay, prompting the hospital to “dump” that person at another facility. The Idaho case raises the question of whether states with strict abortion laws can still dump patients in other states where doctors can terminate their pregnancies to protect the health of the mother.

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

First, the Supremacy Clause of the Constitution 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, notwithstanding anything in the Constitution or Laws of any State to the contrary.” When a federal law and a state law conflict, the federal law is expected to win.

Idaho states that it is possible for hospitals to comply with both Idaho law and EMTALA, so there is no conflict. During oral arguments, some conservative justices seemed sympathetic to that idea. But when Judge Sonia Sotomayor asked whether a doctor in Idaho could perform an abortion to prevent a woman from losing an organ or developing other serious medical complications, the Idaho counsel said, “Idaho law does say that abortions in that case are not allowed. ” If a majority of the Supreme Court sides with Idaho (which seems likely based on oral arguments), it is unclear how it will circumvent the Supremacy Clause – and what the consequences will be for the rest of constitutional law.

Second, the Spending Clause authorizes Congress to pass laws that spend money – including money that goes to the states to administer federal programs such as Medicare. In general, the Supreme Court has interpreted the expenditure clause broadly and upheld laws like EMTALA that impose conditions on states receiving federal funding, as 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 cannot impose conditions on states that are “coercive.” Under the ACA, if states refused to accept additional funding for Medicaid, they could lose it all together. The court ruled that this agreement was unconstitutionally coercive.

Idaho argues that EMTALA is a coercive infringement on states’ rights under Sebelius. It also claims that the terms of the law, which was passed in 1986, are unclear. The government responds in its letter: “The fact 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() ‘ which is affiliated with a federal government. ‘spending program()’ for hospitals.”

On the issue of clarity, the administration adds: “Congress … would have had no reason to speak ‘clearer’ … to ensure that the emergency care requirement could include abortion care where appropriate: at the time of the enactment of EMTALA ., no state could have banned the abortions required by Idaho statute.” Roe v. Wade was the law of the land at the time.

Judge Amy Coney Barrett asked Solicitor General Elizabeth Prelogar whether another government could, under the Spending Clause, enact legislation banning Medicare funding for hospitals that perform abortions or allow gender reassignment surgery. Judge Neil Gorsuch wanted to know whether Congress could regulate the practice of medicine in fifty states. Prelogar said she believes there is sufficient 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 increases states’ ability to ignore the will of Congress, this case could rock the nation for years to come.

Kimberly Wehle is the author of How to Read the Constitution – and Why. Her upcoming book, “Pardon Power: How the Pardon System Works – and Why,” will be published in September. follow her @kimwehle.

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