0:00

We will hear argument this morning in Case 23-7-26, Moyle

0:02

v. United States, and the consolidated

0:06

case. Mr. Turner. Turner.

0:09

Thank you, Mr. Chief Justice, and may it please the

0:11

Court. When Congress amended

0:13

the Medicare Act in 1986, it put M.

0:16

Tala on a centuries-old foundation of

0:18

State law. States have always been responsible

0:20

for licensing doctors and setting the scope

0:22

of their professional practice. Indeed,

0:24

M. Tala works precisely because States

0:27

regulate the practice of medicine, and

0:29

nothing in M. Tala requires doctors to

0:31

ignore the scope of their license and

0:34

offer medical treatments that violate State law.

0:36

Three statutory provisions make this clear.

0:39

First, Section 1395, the Medicare

0:41

Act's opening provision, forbids the

0:43

Federal government from controlling

0:45

the practice of medicine. That's

0:48

the role of State regulation. Second,

0:50

Subdivision F in M. Tala codifies

0:52

a statutory presumption against preemption of

0:55

State medical regulations. And

0:57

third, M. Tala's stabilization provision is

0:59

limited to available treatments, which depends

1:01

on the scope of the hospital

1:04

staff's medical license. Illegal

1:06

treatments are not available treatments. Add

1:09

in this Court's own presumption against preemption

1:11

of State regulations. Combine that

1:13

with the need for clear and

1:15

unambiguous spending clause conditions, and

1:18

the administration's reading becomes wholly untenable. The

1:20

administration's misreading also lacks any

1:23

limiting principle. If E.R. doctors

1:25

can perform whatever treatment they

1:27

determine is appropriate, then

1:29

doctors can ignore not only State

1:31

abortion laws, but also State regulations

1:33

on opioid use and informed consent

1:35

requirements. That turns the presumption

1:37

against preemption on its head and

1:40

leaves emergency rooms unregulated under

1:42

State law. It's unsurprising

1:44

that no Court has endorsed such

1:46

an expansive view of M. Tala. And

1:49

until Dobbs, nor had HHS, everyone

1:52

understands that licensing

1:54

laws limit medical practice.

1:57

That's why a nurse isn't available to

1:59

perform open-hearted. surgery, no matter the need,

2:02

no matter her knowledge. The

2:05

answer doesn't change just because we're talking about

2:08

abortion. The court should

2:10

reject the administration's unlimited reading of MTALA

2:12

and reverse the district court's judgment. I

2:14

welcome the court's questions. Normally

2:21

when we have a preemption case,

2:23

there's some relationship between

2:26

the parties. Is the

2:29

state being regulated by the

2:31

federal government under MTALA or

2:33

is the state engaged in

2:37

some sort of quasi-contractual

2:39

relationship? Yes,

2:41

Your Honor. In this case, the state, Idaho

2:44

for example, has no state

2:46

hospitals that participate with

2:49

the emergency rooms in MTALA. In this

2:52

case, there isn't even a quasi-relationship. The

2:54

parties being regulated by MTALA, here are

2:56

hospitals and doctors. I think your question

2:58

is getting at the Armstrong issue and

3:01

we think that is a significant question. It

3:04

wasn't part of the question presented. We think

3:06

the Indiana Amicus brief raises significant

3:08

questions and deals with that argument well.

3:11

But the question presented here is one

3:13

of direct conflict between Idaho's law and

3:15

MTALA. And on that question, we don't

3:17

think it's hard at all. In

3:21

Your Honor, going to that direct

3:23

conflict, I think if you

3:25

consider the express limitation within

3:27

the statute of

3:29

availability. Well, before we do that, can I just

3:32

step back and get your understanding

3:34

of the statute? You

3:36

made some representations as to how you see it

3:38

working. So let me tell you what I think

3:41

and then you can tell me

3:43

whether you agree, disagree or otherwise. So

3:46

I think that there are two things

3:48

that are pretty plain on the face

3:50

of this statute. One is

3:52

that MTALA is about the provision

3:55

of stabilizing care for people who

3:57

are experiencing emergency medical

3:59

conditions. That's one thing I think

4:01

the statute is doing. And

4:04

I also think that it is operating to

4:06

displace the prerogatives of

4:09

hospitals or states or whomever

4:11

with respect to that fairly narrow

4:14

slice of the healthcare universe.

4:16

This idea of emergency medical services

4:18

is like one very minor part

4:21

or small part of the sort

4:23

of overall healthcare provision

4:25

of healthcare. So what that means is

4:28

that when a hospital wants to

4:30

only provide stabilizing care in emergencies

4:32

for people who can pay for

4:34

it, for example, Emtala

4:37

says, no, I'm sorry, you have

4:39

to stabilize anyone who's experiencing an

4:41

emergency medical condition. Or when a

4:43

hospital wants to provide stabilizing

4:46

treatments to people

4:48

who are experiencing only certain kinds of

4:50

emergency conditions, Emtala says, no, here's the

4:52

list of conditions and you have to

4:55

provide stabilizing care for those people. Similarly,

4:58

if a state says, look, it's our

5:00

job to govern all of healthcare in

5:02

our state, and we say that only

5:04

certain kinds of healthcare can be given

5:07

to people who are experiencing emergency medical

5:09

conditions, we don't want whatever treatment, we

5:11

want only certain kinds of treatment, Emtala

5:14

says, no, we are directing that

5:16

as a matter of federal law when someone

5:18

presents with an emergency condition, they have to

5:21

be assessed and the hospital

5:23

must do whatever is in its capacity

5:25

to stabilize them. Is that your understanding

5:27

of the statute? Partially

5:31

Your Honor, we agree that Emtala

5:33

does impose a federal

5:35

stabilization requirement, but the question here

5:37

is what is the content of

5:39

that stabilization requirement? And for that

5:41

you have to reference state law.

5:43

Okay, well... I could

5:45

just, what you just said is

5:47

important because when you

5:50

concede that Emtala imposes

5:52

a stabilization requirement, it

5:55

is this statute, the federal government, um,

5:58

inter- interfering, if you

6:00

will, in a state's health care

6:03

choices. So, UNTALA is on its face,

6:05

a statute that says it's not all

6:08

the state's way. There are

6:10

federal requirements here. There is a

6:12

requirement to stabilize emergency patients. And

6:14

you agree with that? Yeah,

6:16

Justice King, we agree that UNTALA's purpose was

6:18

narrow to bridge this gap that existed in

6:20

some cases. Okay, so I mean, we can

6:23

just take off the table this idea that,

6:25

you know, just because it's the state and

6:27

it's health care that the federal government has

6:29

nothing to say about it. The federal government

6:31

has plenty to say about it in this

6:33

statute. Now, you're right. Now

6:36

there's a question of what's the

6:38

content of this stabilization requirement? And

6:41

as far as I understood your opening

6:44

remarks, you say, well, this

6:49

is left to the states. But

6:51

if I'm just looking at the statute,

6:53

the statute tells you what the content

6:55

of the stabilization requirement is. It's

6:58

to provide such medical treatment as may

7:00

be necessary to assure

7:02

within reasonable probability that

7:04

no material deterioration of the condition is

7:07

likely to occur if the person were

7:09

transferred or didn't get care. So

7:12

it tells you very clearly it's an

7:14

objective standard. It's basically,

7:16

you know, it's a standard that

7:18

clearly has reference to accepted medical

7:21

practice, not just whatever one

7:23

doctor happens to think. But

7:26

it's here is the content of the

7:28

standard. You have to stabilize. What does that mean?

7:30

It means to provide the

7:32

treatment necessary to assure within

7:35

reasonable medical probability that

7:37

no material deterioration occurs. Yeah,

7:41

let me respond in two ways. First,

7:43

the objective standard that you set forth

7:45

there and that understanding is contrary to

7:47

the administration's view. I say it is

7:50

a totally subjective standard. And whatever treatment

7:52

a doctor determines is appropriate. I think

7:54

that that's not true. I mean, I

7:56

think you guys can argue about this

7:59

yourself. But as I understand, the Solicitor

8:01

General's... brief and we'll see what the

8:03

Solicitor General says. But the Solicitor General

8:05

says it's not up to every individual

8:08

doctor. This is a standard that is

8:10

objective that incorporates accepted medical standards of

8:12

care. Well, and the more fundamental point

8:14

is the definition that you quoted of

8:17

stabilizing care in the operative provision in

8:19

B1 is also textually explicitly qualified

8:22

by that which is within

8:25

the staff and facilities available at a

8:27

hospital. That's quite right. It

8:30

says within the staff and facilities available

8:32

at the hospital. And if

8:34

you just look at that language, I mean,

8:36

it's absolutely clear that that's not a reference

8:38

to what state law involves the

8:41

staff and facilities available. If

8:43

you don't have staff available to provide the medical

8:45

care, then I guess you can't provide the medical

8:47

care. If you don't have the

8:49

facilities available to provide the medical care, then you

8:52

can't provide the medical care. A transfer has to

8:54

take place for the good of the patient. This

8:56

is a really important – But this is the

8:58

availability here because it's the

9:00

availability of staff and facilities.

9:03

It's, you know, do you have the right doctors?

9:06

Do you have enough doctors? Do you have the

9:08

right facilities? Or is it

9:10

better for the patient to transfer them to

9:12

the hospital a few miles away? You're exactly right.

9:14

Do you have the right doctors? How

9:17

do you answer that question except by reference

9:19

to state licensing laws? But you absolutely can't

9:21

do that. I mean, that's the sort of

9:23

the initial point that I was trying to

9:26

make, which is that the federal mandate is

9:29

to provide stabilizing care for

9:31

emergency conditions regardless of any

9:33

other directive that the state

9:35

has or the hospital has

9:37

that would prevent that care

9:39

from being provided. That's

9:42

the work of the statute.

9:44

Justice Jackson, that's not even HHS's

9:47

conclusion. In the State Operations Manual, which they

9:49

proffered on page 36 of

9:51

the brief, it defines what makes a staff

9:54

person available under the statute. And they say

9:56

it has to – And

9:58

does it say that they're not available? of

10:00

state law doesn't allow this

10:02

procedure? It says they are available to

10:04

the extent they are operating within the

10:06

scope of their medical license. And that

10:08

is our argument. They want to now

10:11

draw it far more narrow and look

10:13

only at physical availability. We agree. That's

10:15

a component. But there's also a legal

10:17

availability component here, too. Counsel, the problem

10:19

we're having right now is that you're

10:21

sort of putting preemption on its head.

10:24

The whole purpose of preemption is to

10:26

say that if the state passes a

10:29

law that violates

10:31

federal law, the state law

10:33

is no longer effective. So

10:35

there is no state licensing law that

10:38

would permit you, permit the state

10:40

to say, don't

10:42

treat diabetics with

10:45

insulin. Treat

10:47

them only with pills, metformin.

10:50

And a doctor looks at a juvenile

10:52

diabetic and says, without insulin, they're going

10:54

to get seriously ill. And

10:57

the likelihood, and I don't know

10:59

what that means under Idaho law, we'll get to

11:01

that shortly, because,

11:04

I don't know, we

11:07

believe this is a better treatment. Federal

11:10

law would say, you can't

11:13

do that. Medically accepted, objective

11:15

medically accepted standards of care

11:18

require the treatment of diabetics with

11:20

insulin. The medically

11:23

accepted obligation of

11:25

doctors when they have women

11:27

with certain conditions that

11:30

may not result in

11:32

death, but more

11:35

than likely will result in

11:38

very serious medical conditions,

11:41

including blindness for some, for

11:43

others the loss of organs, for

11:46

some chronic blood

11:49

strokes. Idaho

11:51

is saying, unless the doctor can

11:53

say in good faith

11:56

that this person's death is likely,

11:58

as opposed to... serious

12:02

illness, they can't perform the

12:04

abortion. So

12:07

I don't know your argument about state licensing

12:09

law because this is what this law does. It

12:12

tells states your

12:14

licensing laws can't take

12:16

out objective

12:19

medical conditions that

12:22

could save a person from serious injury

12:24

or death. I

12:26

think there are two crucial responses to

12:28

your point. Let me begin with the

12:30

preemption point. Subdivision

12:33

F and Section 1395

12:35

actually are telling HHS,

12:37

the federal government and courts, just the

12:39

opposite that you do... No, it's saying

12:42

you can't preempt unless there's a direct

12:44

conflict. If objective

12:46

medical care requires you

12:49

to treat women who present

12:52

the potential of serious medical

12:55

complications, and

12:58

the abortion is the only thing that can prevent

13:00

that, you have to do it. Idaho,

13:02

Lola says, the doctor has to

13:05

determine not that there's

13:07

merely a serious medical condition, but

13:09

that the person will die. That's

13:12

a huge difference, counsel. We

13:14

agree that there is daylight between

13:17

how the administration is reading MTALA

13:19

and what Idaho's Defensive Life Act

13:21

permits. We agree that there

13:23

is a controversy here, but what I'm saying is

13:25

that... No, no, no, no. There's more than a

13:28

controversy, because what you're

13:30

saying to us is if MTALA

13:32

doesn't have preemptive force, then

13:35

not just Idaho. It

13:38

has a saving condition

13:40

for abortions when it threatens

13:42

a woman's life. But what

13:44

you're saying is that no

13:46

state in the nation, and there are

13:48

some right now that

13:51

don't even have that as

13:53

an exception to their anti-abortion laws, what

13:56

you are saying is that There

13:58

is no Federal law on the court. The Book.

14:01

That. Prohibits any state.

14:04

From saying even if a woman

14:06

will die. You can't. Perform

14:09

an abortion and I know of no

14:11

state that does not include a lifesaving

14:13

exception. But second me so of I've

14:15

been debating it at least. At

14:17

if I find one such, your

14:20

theory of this case. Leads

14:22

to that conclusion. I

14:24

think our point is that Impala doesn't

14:26

address our zero years. I can I

14:29

hear your answer. Yes

14:31

or. In

14:33

the most recent reliance on a

14:35

standard like best clinical evidence for

14:37

some national norm, I think that's

14:39

very frost because what it really

14:41

is saying is protects itself doesn't

14:43

address what stabilizing treatment is required.

14:45

You go outside the text to

14:47

professional standards that are floating out

14:49

there that might change day to

14:51

day, and that really boils down

14:53

to a question between a conflict

14:55

between what a card says and

14:57

what Idaho law says and nine

14:59

hundred thirty cause with. Some

15:01

Isis clarify because I'm not

15:03

sure I understand that you

15:06

know, sort of. Looking at

15:08

this from a broader perspective,

15:10

it seems to me that

15:12

Impala says must provide whatever

15:14

treatment you have the capacity

15:16

meaning staff and facilities to

15:18

provide to stabilize patients who

15:20

are experiencing emergency medical conditions.

15:23

Idaho law seems to say

15:25

you cannot provide. Sat

15:28

treatments unless doing so is

15:30

necessary to present a person's

15:32

death. Civic Center treatment involves

15:34

abortion. Why is that not

15:36

a direct conflict you have?

15:38

You must. In a certain situation,

15:40

that's what the Federal government is saying. and

15:43

cannot is it involves abortion says

15:45

idaho i think the nurse example

15:48

really highlights the reason why is

15:50

a nurse might be available the

15:52

nurse may be may even think

15:55

she knows how to and under

15:57

the flat must provision in a

16:00

The administration's reading would say, call her

16:02

into action, put her into the

16:04

operating room and open the patient up. Right.

16:06

And Idaho would say no, that's still

16:09

a conflict. So fine. Let's say the

16:11

administration's position is that nurse can do it.

16:13

Are you suggesting that federal law would

16:15

not take precedence, would not preempt a

16:18

state law that says no, she can't?

16:20

Well, whether federal law could do that

16:22

is a different question than whether Intala

16:24

here does do that. And

16:26

I think the answer is clear that it

16:28

doesn't. I mean, it's like the Gonzales v.

16:30

Organ case where the Controlled Substances Act, you

16:34

know, this court noted that

16:36

that was the provisions there

16:38

rely upon and assume a

16:41

medical profession being regulated by state police

16:43

powers. That's the same with Intala. Intala

16:45

is a four-page statute. Congress didn't

16:47

attempt to address the standards of

16:50

care for every conceivable medical treatment.

16:52

It definitely didn't address the standards

16:54

of care. It did leave that

16:56

to the medical community. It said,

16:58

you know, the Congress

17:01

was not going to address every treatment

17:03

for every condition, but it

17:05

said you do what

17:07

is needed to assure non-deterioration.

17:10

So I guess the question here is, do you

17:14

concede that with respect to

17:16

certain medical conditions,

17:18

an abortion is the standard

17:20

of care? No, because

17:22

the standard of care under, well, I should say

17:24

in Idaho, there is

17:26

a life-saving exception for certain abortions,

17:29

and that is the standard of care.

17:31

And the standard of care is necessarily

17:33

set and determined by state law. Well,

17:36

I think you have to concede that

17:38

with respect to certain medical conditions, abortion

17:40

is the standard of care because your

17:42

own statute, as interpreted by your own

17:44

courts, acknowledges that when a condition

17:47

gets bad enough such that the woman's

17:49

life is in parallel, then

17:54

the doctors are supposed to give abortions. And the reason

17:56

that that's true is that with respect to certain medical

17:58

conditions, certain rare

18:00

but extremely

18:03

obviously important conditions

18:06

and circumstances, abortion is

18:09

the accepted medical standard of care. Isn't

18:11

that right? Yes, and that was

18:13

my point, that there is a life-saving exception

18:16

under Idaho Law. Now, the question here is...

18:18

Now, the question is, is it

18:20

also the accepted standard of care

18:23

when rather than the woman's life being

18:25

in peril, the woman's health

18:27

is in peril. So let's take... All

18:31

of these cases are rare, but within these

18:33

rare cases, there's a significant number where

18:37

the woman is... Her life is not

18:39

in peril, but she's going to lose her reproductive

18:41

organs. She's going to lose the ability to

18:43

have children in the future unless

18:46

an abortion takes place. Now, that's

18:48

the category of cases in which

18:50

I'm tallest says, my

18:52

gosh, of course

18:54

the abortion is necessary to assure

18:57

that no material deterioration occurs. And

19:00

yet Idaho says, sorry,

19:02

no abortion here. And

19:05

the result is that these patients

19:07

are now telecoctored out of state.

19:11

The hypothetical you raise is

19:14

a very difficult situation. And

19:16

these situations, nobody's arguing

19:18

that they don't raise tough medical

19:20

questions that implicate deeply theological and

19:23

moral questions. And Idaho, like 22

19:25

other states, and even Congress and

19:27

MTALA recognizes that there are two

19:30

patients to consider in those circumstances.

19:33

And the two patient scenario is

19:35

tough when you have these

19:37

competing interests. You know, that would be

19:39

a good response if federal law did

19:41

not take a position on what you

19:43

characterize as a tough question. But

19:45

federal law does take a position on that

19:47

question. It says that you don't have to

19:49

wait until the person is on the verge

19:52

of death. If the

19:54

woman is going to lose her reproductive organs,

19:56

that's enough to trigger this duty

19:58

on the part of the hospital. to

20:00

stabilize the patient and the way to stabilize

20:03

patients in these circumstances, all doctors agree.

20:05

And Idaho law does not require that

20:07

doctors wait until a patient is on

20:09

the verge of death. There is no

20:12

imminency requirement. There is no medical certainty

20:14

requirement. I'm sorry, answer the following question,

20:16

and these are hypotheticals that are true.

20:20

Hold on one second, and you can tell

20:23

me whether Idaho's exception, and we still go

20:25

back to the point that even if Idaho

20:27

law is fully comprised

20:29

with the federal law,

20:33

you have a pregnant

20:36

woman who is early into her second

20:38

trisomester at 16 weeks, goes

20:41

to the ER because she felt a gush

20:44

of fluid leave her body. She

20:46

was diagnosed with PPROM. The

20:49

doctors believe that a medical intervention

20:52

to terminate her pregnancy is needed

20:54

to reduce the real

20:57

medical possibility of experiencing

20:59

sepsis and uncontrolled

21:01

hemorrhage from the broken

21:04

sac. This

21:06

is a story of a real woman. She

21:08

was discharged in Florida because the fetus

21:10

still had fetal tones, and

21:13

the hospital said she's not likely to

21:15

die, but there are

21:17

going to be serious medical complications.

21:20

The doctors there refused to treat her

21:23

because they couldn't say she would

21:25

die. She was

21:27

horrified, went home. The next

21:29

day she bled. She

21:32

passed out, thankfully taken to

21:34

the hospital. There she

21:36

received an abortion because she was

21:38

about to die. What

21:41

you are telling us, is that a

21:43

case in which Idaho, the day before,

21:47

would have said it's okay to have an abortion? Under

21:50

Idaho's life-saving exception, a

21:53

doctor could in good faith, if the

21:55

doctor could in good faith medical judgment,

21:57

determine... No, I'm asking you. The Florida...

22:00

doctor said, I can't say she's going to

22:02

die. If your doctor says, I can't

22:04

with a medical certainty

22:07

say she's going to die, but

22:09

I do know she's

22:13

going to bleed to death if we don't have

22:16

an abortion, but she's not bleeding yet, so I'm

22:18

not sure. The doctor

22:20

doesn't need to have medical certainty. Counsel

22:22

will answer yes or no. He

22:24

doesn't have, he cannot say that

22:26

there's likely death. He can say

22:29

there is likely to be a

22:31

very serious medical condition, like

22:33

a hysterectomy. Let me go to another

22:36

one. Imagine a patient who goes to

22:38

the ER with pre-prompt, 14 weeks. Again,

22:41

abortion is de-affected.

22:44

She was in and out of the hospital up to 27 weeks.

22:49

This particular patient, they

22:52

had to deliver her baby. The

22:54

baby died. She had a hysterectomy,

22:58

and she can all over have she. All

23:01

right, you're telling me the doctor there couldn't

23:03

have done the abortion earlier? Again,

23:06

it goes back to whether a doctor

23:08

can in good faith medical judgment. That's

23:10

a lot for the doctor to risk. Well,

23:13

I think it's protective of doctor

23:15

judgment. When Idaho law changed to

23:17

make the issue whether

23:20

she's going to die or not, or whether she's going

23:22

to have a serious medical condition, there's a big day

23:25

like by your standards, correct? It

23:29

is very case by case. The example is

23:31

problem. That's the problem. I'm kind of shocked

23:33

actually, because I thought your own expert had

23:35

said below that these kinds of cases were

23:37

covered. You're now saying they're not? No,

23:39

I'm not saying that. That's just my point, Your Honor,

23:41

is that- Well, you're hedging. I mean, Justice Sotomayor

23:43

is asking you, would this be covered or not? It

23:45

was my understanding that the legislature's witnesses

23:47

said that these would be Covered.

23:49

Yeah, And those doctors said if they

23:52

were exercising their medical judgment, they could

23:54

in good faith determine that life-saving care

23:56

was necessary. And That's my point. Objection

24:00

Dieters quadrants is is some factors might

24:02

reach a contract conclusion and I think

24:04

as off sort of my eyes asking

24:06

you sell them and their say read.

24:08

If they reached the conclusion that the legislature's.

24:11

Doctors did. Would

24:13

they be prosecuted under either who are.

24:16

No. Know if they If they

24:19

reached the conclusion that the Doctor Reynolds

24:21

Doctor White did that, these were like

24:23

one. Of the prosecutor thought differently but if

24:25

the prosecutor thought well I don't think any good

24:27

says after could draw that conclusion I'm gonna put

24:29

on my expert. And in that

24:32

your honor is the nature of our.

24:34

Prefer. Toil discretion and it

24:37

may result in a

24:39

cage or. Put out any sign

24:41

of guidance. You know Hhs without guidance

24:43

about what's covered by the law and

24:45

what's not as Idaho. On

24:48

there are regulations on the dapper regulations

24:50

but I think that the guiding star

24:52

here is T and Turn had the

24:54

was in case which is a lengthy

24:56

detail treatment by the at a simple

24:59

worth of this law and it made

25:01

clear to court Made clear that there

25:03

is no medical certainty reform and you

25:05

do not have to wait for the

25:07

mother to be facing death. Council

25:10

and to council. Is

25:13

there? But what happens if a

25:15

dispute arises with respect. To whether

25:17

or not the doctor was within

25:20

the confines of Idaho law or

25:22

was. To

25:25

review by medical authorities.

25:29

Exactly how is that evaluates because it's

25:31

an obvious concerned if if the you

25:33

have an individual exception for a doctor

25:35

and there were having a debate about

25:37

is that covered by. Your

25:40

submission that on nothing

25:42

in Idaho law prohibits

25:44

flying in power. I.

25:47

be who's who makes the decision whether

25:49

or not some things with sooner without

25:51

to me i imagine there are two

25:53

ways the law can be and for

25:55

service to the board of medicine has

25:57

with the licensing oversight over a doctor

26:00

And the Idaho Supreme Court made clear that

26:02

that doctor's medical judgment is not gonna be

26:04

judged based on an objective standard what a

26:06

reasonable doctor would do. That's not the standard.

26:09

The second way would be if a- What is

26:11

the standard? The doctor's good

26:13

faith medical judgment, which is subjective. And

26:16

that's not subject to review by any medical

26:18

board? If there's a complaint against

26:20

the doctor that his standards

26:22

don't comply, and say he's the only doctor at

26:24

the particular emergency room, and

26:26

he has his own particular standard? What

26:29

the Idaho Supreme Court has said is that

26:31

you may consider another

26:33

doctor's opinion only on the question

26:35

of was it a pretextual medical

26:37

judgment, not a good

26:39

faith one. Thank you. Justice Thomas? Justice

26:42

Alito? Well,

26:44

I would think that the

26:46

concept of good faith medical

26:48

judgment must take

26:50

into account some objective

26:52

standards, but it would leave a

26:55

certain amount of leeway for

26:57

an individual doctor. That was how

26:59

I interpreted what

27:03

the state Supreme Court said. Now, you

27:05

have been presented here today with

27:08

very quick summaries

27:10

of cases and

27:14

asked to provide a snap

27:16

judgment about what would

27:18

be appropriate in those particular cases.

27:21

And honestly, I think you've hardly

27:23

been given an opportunity to answer

27:25

some of the hypotheticals, but would you agree

27:28

with me that if a

27:30

medical doctor who is an expert in this

27:33

field were asked bang, bang,

27:35

bang, what would you do in

27:37

these particular circumstances which I am now

27:39

going to enumerate, the doctor would say,

27:42

wait, this is not how I

27:44

practice medicine. I need to know a lot

27:46

more about the individual case. Would you agree

27:48

with that? Absolutely, and ACOG

27:50

has, in

27:53

the case of prom, for example, ACOG doesn't

27:55

just knee jerk, say an abortion is the

27:57

standard of care. ACOG itself

27:59

says that expectant management is oftentimes

28:01

the appropriate standard of care. And so

28:03

these are difficult questions that turn on

28:06

the facts that are

28:08

on the ground between the doctor as he

28:10

is assessing them with his medical judgment that

28:12

he's bringing to bear, but is also necessarily

28:14

constrained by Idaho law. Just

28:16

like every other area of the

28:18

practice of medicine, state law confines

28:20

doctor judgment in some ways. Thank

28:23

you. Justice Sotomayor. There is a

28:26

difference between stabilizing

28:28

a person who presents

28:31

a serious medical condition

28:34

requiring stabilization than

28:36

a person who presents with

28:40

a condition, quoting Idaho's

28:42

words, where there is a, poses

28:47

a great risk of death to the pregnant

28:49

women. You agree there's daylight between the two.

28:52

We agree. So there will

28:54

be some women who present serious

28:57

medical condition that the

28:59

federal law would require to be treated

29:02

who will not be treated under Idaho

29:04

law. No, I disagree with that. Idaho

29:07

hospitals are treating these women. They're not

29:09

treating these women with abortions necessarily, Your

29:12

Honor. And that's an important point. Just

29:14

to answer the point, which is they

29:17

will present with a serious

29:19

medical condition that doctors in

29:21

good faith can't say will

29:24

present death, but will present potential

29:27

loss of life. Those

29:30

doctors, potential loss of an

29:32

organ or serious medical

29:35

complications for the woman, they can't

29:37

perform those awards. Yeah, Your Honor,

29:39

if that hypothetical exists, and I

29:41

don't know of a condition

29:44

that is so certain to result in the

29:46

loss of an organ, but also so certain

29:48

not to transpire with

29:50

death, if that condition exists, yes. Idaho

29:52

law does say that abortions in that

29:54

case aren't allowed. And I think- All

29:57

right. Let me stop you there, because all of

30:00

your legal theories rely on

30:02

us holding that

30:05

federal law doesn't require, cannot

30:07

preempt state law on these

30:09

issues. And so when I

30:11

asked you the question, if a

30:13

state defines

30:16

likelihood of death more

30:19

stringently than Idaho does, you

30:22

would say there's no federal law that would

30:24

prohibit them from doing that. Well,

30:27

I would say that MTALA does not contain

30:29

a standard of care. So there is no

30:31

standard of care. In

30:34

your briefing, you made the SG's

30:36

position here, and you almost

30:38

argue that now, that

30:41

their position

30:44

that federal law requires

30:46

stabilizing treatment and not

30:49

equal treatment of

30:51

patients, which was a position you took in your

30:53

brief. You seem to have backed off from it here.

30:56

You seem to agree that federal

30:58

law requires some stabilizing condition,

31:00

whether or not you

31:02

provide it to other patients. But

31:05

I have countless briefs that

31:08

say that HHS has

31:11

filed that pre-DOPS,

31:13

pre-2009, this is not

31:15

an unprecedented position, that

31:18

HHS, in

31:20

countless situations, cited

31:22

hospitals for discharging patients who

31:25

required an abortion as a

31:27

stabilizing treatment. Congress

31:29

discussed that topic in

31:31

the Affordable Care Act and

31:34

explicitly said that nothing

31:36

in the Affordable Care Act shall be

31:38

construed to relieve any

31:40

health care provider from providing

31:42

emergency services as required by

31:45

state or federal law. Medical

31:48

providers have told

31:50

us that for decades, they

31:53

have understood both federal law and state

31:55

law to require

31:57

abortions as stabilizing conditions.

32:00

for people presenting serious

32:02

medical risk. Lower

32:04

courts, there's at least cases

32:07

of lower courts saying you

32:09

have to provide abortion. So

32:11

this is not a post-dod's

32:13

unprecedented position by the government.

32:16

It absolutely is. The footnote two, the

32:18

administration cites to two spreadsheets that contain

32:20

115,000 rows of

32:23

enforcement instances. The administration

32:25

has not identified a single instance.

32:27

So pre-dod's, this wasn't much of

32:30

a question, but there

32:32

is HHS guidance and there's

32:34

at least three cases in

32:37

which it was invoked. The fact that

32:40

HHS didn't have to do it much before

32:43

pre-dod's doesn't make their

32:45

position unprecedented. My

32:48

point is more fundamental, Your Honor. It's not

32:50

just that there are few instances. There are

32:52

no instances, and not just on the issue

32:54

of abortion, on any instance where HHS has

32:57

come in and told a hospital, you have to provide

32:59

a treatment that is contrary to state law. And this

33:01

isn't just about abortion. Consider the whole theory. Now we're

33:03

back to that. Okay. Thank you. Mrs.

33:06

Kagan. Mr. Turner, practicing

33:09

medicine is hard, but there are standards of

33:11

care, aren't there? Yes, there are.

33:13

And one of those standards of care with

33:15

respect to abortion is that

33:17

in certain tragic circumstances, as

33:21

you yourself, as your own state's law

33:24

acknowledges, where a woman's life

33:26

is in peril and abortion is the appropriate

33:29

standard of care. Isn't that right? That's right.

33:31

And MTALA goes further. It says

33:33

that the appropriate

33:36

standard of care can't

33:38

only be about protecting a woman's life. It

33:40

also has to be about protecting a woman's

33:42

health. That's what MTALA says,

33:45

doesn't it? No, it doesn't. It defines

33:47

the emergency medical condition with a broader

33:49

set of triggering conditions, but the key

33:52

question here is what is the stabilization

33:54

requirement? And that is qualified by the

33:56

availability term. The

33:58

stabilization requirement? is

34:02

written in terms of

34:05

making sure that a

34:07

transfer would not result in a

34:09

material deterioration as to the emergency

34:11

condition. Nothing about has to be

34:14

a death store, right? I

34:16

think that's right, yes. And there

34:19

is a standard of care with respect to that

34:21

on abortions too, right? If a woman

34:23

is going to lose her reproductive organs

34:26

unless she has an abortion, which happens

34:28

in certain tragic circumstances, a

34:30

doctor is supposed to provide an abortion, isn't

34:33

that right? And Tala doesn't contain any standard

34:35

of care. I don't know where the administration

34:37

is brought. Do you dispute that there's a

34:39

medical standard of care that when a woman

34:41

is about to lose her reproductive organs unless

34:43

she has an abortion, that

34:46

doctors would not say that

34:48

an abortion is the appropriate standard of care

34:50

in that situation? What

34:53

I dispute is that there is a national uniform

34:55

standard of care that requires a top-down approach in

34:57

all states. Idaho has set its own standard of

34:59

care and it has drawn the line on

35:02

a difficult question and it's inconceivable to

35:04

me to think that Congress attempted to

35:06

answer this very fraught, complicated

35:08

question in four pages of the

35:10

U.S. code. Congress said

35:13

as to any condition in the

35:15

world, if an emergency patient

35:17

comes in, you're

35:19

supposed to provide the emergency care

35:22

that will ensure that that patient does not

35:24

see a material deterioration in their health.

35:26

And always within that. That's what Congress

35:28

said. And the abortion exceptionalism

35:30

here is on the part of the

35:32

state saying we're going to accept that

35:34

with respect to every other condition but

35:37

not with respect to abortion. Abortion isn't

35:39

an exception. Well, we will not comply

35:41

with the standard of care that doctors

35:44

have accepted. Your Honor, abortion isn't exceptional.

35:46

There are numerous cases where states intervene

35:48

and say the standard of care in

35:50

this circumstance for this condition is X,

35:53

not Y. Opioids, for example. In New

35:55

Jersey, a doctor cannot stabilize chronic pain

35:57

with more than a five-day supply of

35:59

blood. opioids. In Pennsylvania it can be

36:01

seven. In other states there's no limit.

36:04

Their reading of Antala requires that those limitations

36:07

get wiped out and you impose a national

36:09

standard. There are numerous other instances where states

36:11

are coming in and saying in our state

36:13

the practice medicine must conform to this standard

36:16

and I know who has done that with

36:18

abortion, it's done it with opioids, it's done

36:20

it with marijuana use. There are countless examples

36:22

your honor. And your theory,

36:26

although the Supreme Court has narrowed the

36:29

reach of your statute, your theory would

36:31

apply even if it hadn't. I

36:34

mean it would apply to ectopic pregnancies.

36:36

It would apply even if

36:38

there were not a death exception.

36:41

I mean all of your theory

36:43

would apply no matter what really

36:45

Idaho did, wouldn't it? Yeah, I

36:48

think the answer is Antala doesn't speak

36:50

to that but there are other background

36:52

principles and limitations like rational basis review,

36:55

Justice Rehnquist, the Chief Justice. But your

36:57

theory of Antala is that Antala preempts

36:59

none of it. That a

37:02

state tomorrow could say even if

37:04

death is around the corner. A

37:06

state tomorrow could say even if

37:08

there's an ectopic pregnancy that still

37:10

that's a choice of

37:12

the state and Antala has nothing to

37:15

say about it. And that understanding is a humble

37:17

one with respect to the federalism role of

37:20

states as the primary care providers for their

37:22

citizens, not the federal government. It may be

37:24

too humble for women's health, you know? Okay,

37:28

thank you. Justice Gorsuch? I

37:31

just wanted to understand some of your responses

37:34

or efforts

37:36

to respond to some of the questions that we've

37:38

heard today. As

37:41

I read your briefs, you

37:44

thought that Idaho thinks that in

37:46

cases of molar and ectopic pregnancies,

37:48

for example, that an

37:51

abortion is acceptable. Correct.

37:54

And the example of someone who

37:56

isn't immediately going to die may

37:58

at some point in the

38:01

future that that would be acceptable.

38:04

It goes back to the good faith medical standard, but yes,

38:07

if the doctor cannot determine

38:09

in good faith that death

38:12

is going to afflict

38:14

that woman, then no. So it doesn't

38:17

matter whether it happens tomorrow or next

38:19

week or a month from now. There

38:21

is no imminency requirement. This whole notion

38:23

of delayed care is just not consistent

38:25

with the Idaho Supreme Court's reading of

38:28

the statute and what the statute says.

38:30

And the good faith, as I read

38:32

the Idaho Supreme Court opinion, that controls.

38:34

That's the end of it. Absolutely, it is. And

38:38

then what do we do with the M.T.A.L.A.'s

38:40

definition of individual to include

38:42

both the woman and,

38:45

as the statute says, the unborn

38:47

child? Yeah. No,

38:50

we're not saying, Your Honor, that M.T.A.L.A.

38:52

prohibits abortions. So,

38:54

for example, in California, stabilizing

38:57

treatment may involve abortions consistent

38:59

with what that state law

39:02

allows its doctors to perform. But

39:05

I think our point with the unborn

39:07

child amendment in 1989 is that it

39:09

would be a very strange thing for

39:12

Congress to expressly amend

39:14

M.T.A.L.A. to require care for unborn

39:17

children. And it's not just when the

39:19

child and when the mother is experiencing

39:21

active labor. The definition of emergency medical

39:23

condition requires care when the child itself

39:25

has an emergency medical condition regardless of

39:27

what's going on with the mother. And

39:29

so it would be a strange thing

39:32

for Congress to have regard for the

39:34

unborn child and yet also

39:36

be mandating termination of unborn children.

39:41

Justice Kamenow? I just

39:43

want to focus on the actual

39:45

dispute as it exists now, Today,

39:48

between the government's view of M.T.A.L.A.

39:50

and Idaho law, because Idaho law

39:52

has changed since the time of

39:55

the district court's injunction, both with

39:57

the Idaho Supreme, Court and the

39:59

state. Four Hours A or

40:01

clarifying change by the Idaho

40:03

Legislature you say your reply

40:06

brace and so to them.

40:08

The while reply brief says

40:10

that for each to the

40:12

conditions and genocide by the

40:14

Solicitor General were under their

40:16

view of and on tower

40:18

in Abortion must be. Available

40:21

Are you saying The reply Breeze said

40:24

I: The Whole Wall in fact allows

40:26

an abortion in each of those circumstances

40:28

and you go through them on paid

40:31

to Satan I As a reply brief,

40:33

it's as the conditions. Is

40:36

there any condition that you're aware

40:38

of where the Solicitor General says

40:40

and tala? Om. Requires

40:42

and an abortion be available

40:44

in an emergency circumstance where

40:46

Idaho whole law as currently.

40:50

Stated does not. Certainly the administration maintains

40:52

that there is such conditions the ones

40:54

they identify, what is it, they are

40:56

and what is your view in my

40:59

view is that Yes and I'm in

41:01

a reference footnote five From the Great

41:03

Race on the mental health condition situation

41:05

to as her son says that's not

41:08

on the table and that's not a

41:10

scenario where on abortion is it he

41:12

only stabilizing care required And I'm not

41:14

sure where that construct of only stabilizing

41:17

care comes from because under their view

41:19

it's the doctors termination that controls not

41:21

this imposed only requirement that be that

41:23

as it may harm the American Psychiatric

41:26

Association in some taking general provider up

41:28

on her offer a footnote Fi that

41:30

there are no professional organizations that said

41:32

abortion as a standard of care. The

41:35

American Psychiatric Association in a Twenty Twenty

41:37

Three position paper says that abortions are

41:39

imperative for mental health conditions. That sounds

41:41

like a necessity to me and I

41:44

don't know how a woman presents at

41:46

seven months pregnant in an Idaho emergency

41:48

room and says and. Experiencing severe

41:50

depression from this pregnancy and

41:52

having suicidal ideation from carrying

41:54

this pregnancy Fourth that that

41:56

wouldn't under the administration's reading

41:58

be the only stabilizing era.

42:01

So. You think the ninth circuit

42:04

panel? When. It's sad. Or

42:07

every circumstance described by the administration's

42:09

declarations involved life threatening circumstances under

42:11

which Idaho law would allow an

42:13

abortion. The Ninth Circuit panel said

42:16

we agree with advocacy Conditions identified

42:18

in the affidavit were all conditions

42:20

that would sit under the lifesaving

42:22

exception. And that's telling because know

42:25

these doctors when put under oath

42:27

in an affidavit couldn't come up

42:29

with any of these harrowing circumstances

42:31

identified other ones. But I think

42:33

for the government doesn't want to

42:36

talk about. Again, is the mental health

42:38

exception here? that is I'd I just

42:40

don't know how you can read their

42:42

understand it is trying to figure out.

42:44

Is there really is other than the

42:47

mental health which we haven't had a

42:49

lot of briefing about. Is there any

42:51

other condition identified by source for general.

42:54

Where. You think Idaho Wall

42:56

would not allow physician his

42:58

or her good face judgment

43:01

to. Perform an

43:03

emergency of course not in their

43:05

affidavits. They maintain nonetheless that when

43:07

you compare the definition what an

43:09

emergency medical condition is, it is

43:11

broader than the definition of the

43:14

lifesaving exception in Idaho alonso the

43:16

present. that's what they'd they say.

43:18

But then when we get down

43:20

to the actual conditions that are

43:22

listed examples and just sort of

43:24

my were was going through some

43:27

some of those you have said

43:29

in your brief at least for

43:31

each conditions identified. By the government.

43:33

Actually Idaho law allows know where to

43:35

see abortion angry and I think the

43:37

injunction here is always is what would

43:40

what does that mean for what we're

43:42

deciding here. While what am I don't

43:44

know if Idaho law allows an abortion

43:46

it needs to the emergency circumstances that

43:48

is identified by the government as tower

43:51

mandating that of be allowed. us

43:54

to things and in the real

43:56

practical first responses that i those

43:58

under and engine That includes

44:01

an incredibly broad requirement

44:03

that preempts state law. Right. I understand that.

44:06

And that may mean that there shouldn't be

44:08

an injunction. I take your point on that.

44:10

What's your second? My second point, Your Honor,

44:12

is I don't know how this Court can

44:16

make the determination on whether there

44:18

are any real-world conditions without first

44:20

answering the statutory interpretation question

44:22

of what and how the stabilization

44:25

requirement actually requires. That

44:27

has to be addressed. It has to be

44:29

addressed not only because that's... Well,

44:31

I was just picking up on your reply brief. You're

44:33

the one who said it in your reply brief that

44:35

there's actually no real

44:38

daylight here in terms of the conditions. So

44:40

I'm just picking up on what you all said.

44:42

Yeah. I understand, Your Honor. Thank

44:44

you. Justice Barrett? I guess I

44:46

don't really understand why we have to

44:49

address the stabilizing condition if what

44:51

you say is that nobody has been able

44:53

to identify a conflict. And

44:56

on the mental health thing, the SG says, I

44:58

just picked it up to check footnote five, Idaho

45:01

badly errs in asserting that construing

45:03

EMTALA according to its terms would

45:06

turn emergency rooms into federal abortion

45:08

enclaves by allowing pregnancy

45:10

termination for mental health concerns. So

45:13

if that's the only space that you

45:15

can identify where Idaho would preclude an

45:18

abortion and EMTALA would

45:20

require one, and the government is saying,

45:22

no, that's not so, what's the

45:24

conflict? Well, Your Honor, I mean,

45:26

of course we think we win whether

45:29

you find no factual conflict and

45:31

therefore the injunction has to go away. But why?

45:33

Why are you here? I mean, you know, the

45:35

government says... They suit up, Your Honor. Well, hold

45:37

on a second. You're here

45:39

because there's an injunction precluding you

45:42

from enforcing your law. And

45:44

if your law can

45:46

fully operate because EMTALA

45:48

doesn't curb Idaho's authority to

45:50

enforce its law... Well, it can't

45:53

under the injunction, because the injunction says that

45:55

Idaho's law is preempted in an

45:57

incredibly broad range of circumstances to avoid...

46:00

The conflicts. With and Fall, I

46:02

thought it made as much broader than

46:04

that. Bizarre and in this was based

46:06

on the proffered an injunction by the

46:09

administration to avoid an emergency medical condition

46:11

not in the face of an emergency

46:13

medical get to censor what that means

46:15

is Idaho's last can't even operate one?

46:18

A doctor determined that the conditions might

46:20

need to be avoided that hasn't yet

46:22

presented itself thus far broader than the

46:24

emergency medical condition, a stabilization requirement, and

46:27

and taller because the civilization requirement under

46:29

Impala is only triggered. When there

46:31

has been a determination of our our I

46:33

would like her that for certain us response

46:36

to that. but let me just ask. You

46:38

one other thing about the mental health

46:40

considerations as I can, I can understand

46:42

Idaho's point that a mental health exception.

46:45

Would be far broader than Idaho line have

46:47

the potential to expand the availability of a

46:49

force and far behind. Where I

46:52

A law permits, but the

46:54

stabilization requirements only exists up

46:56

until. Transfer right answer as

46:58

possible. So it's hard for me to see how

47:00

with a mental health condition. That.

47:02

Couldn't be stabilize the foreign media

47:05

successes right at that point the

47:07

animal hospital could say lawyers your

47:09

stable you're not immediately going to

47:11

be suicidal will leave you in

47:13

the care of l a parents

47:15

are partner who will then. Seek.

47:18

Appropriate treatment. What That flexible view

47:20

of civilization is very different than

47:22

the government's very rigid you of

47:25

civilization which is if an emergency

47:27

medical condition cause for an abortion

47:29

is gonna be provided right there

47:31

and then if it's available and

47:33

is very limited stamps and so

47:35

the stabilization continuum that you're talking

47:37

about I agreed as built into

47:39

a policy. citizens Who Trance. Wealthy

47:42

to transfer provision six and if

47:44

is hospitals unable to stabilize air

47:46

conditioning so to be patient. Presents at

47:49

a hospital in that hospital has the capability

47:51

to be availability to stabilize the conditions In

47:53

the case of Mental Health and fight Journal

47:55

pre order to come up here and tell

47:57

you that I got it all wrong and

47:59

that. It, you know I'm the mother

48:01

that I described would not need to receive

48:04

stabilization in that circumstance and he said would

48:06

be transferred to a psychiatric hospital or something

48:08

in that wouldn't cost dumping under their reading.

48:10

I just don't see how that comports with

48:13

everything they said about the rigid view of

48:15

stabilization that is a condition called for it

48:17

in a hospital can do it is gonna

48:19

be done there and then. As I don't

48:22

know of any Constance exemption for doctors under

48:24

state law, he does in our federal conscience

48:26

protections as well and I think that is

48:28

a key points here. Your honor on

48:31

the administration told the scored in the

48:33

have to a case that's individual. doctors

48:35

aren't never required to perform an abortion

48:37

from what I could tell, But that

48:39

doesn't extend to hospitals and soon the

48:42

case of Catholic Hospitals in there are

48:44

hundreds of them treating billions of patients

48:46

every year. Under the administration's reading, Catholic

48:48

Hospitals who faithfully here to the ethical

48:50

religious directors are now required to perform

48:53

abortions That because. They'll settle. Constance

48:55

exemption applies. I.

48:57

Don't know why they say

48:59

that's a deadline that they

49:01

draw between individual doctors and

49:03

religious institutions, because code Snow

49:05

on Faith seems to cover

49:07

both. Think you

49:09

just a saxon? Surprised to series

49:12

say that I'd a home law

49:14

permits everything that the federal law

49:16

requires scientists. I'm trying to understand

49:19

that because it seems to me

49:21

that it's that's the case then.

49:23

Why couldn't emergency room physician in

49:26

Idaho just ignore Idaho law and

49:28

follow the federal standard? And it's

49:31

it's It's the state is doing

49:33

exactly what this with a federal

49:35

law says is required. It's it's

49:38

okay. by idaho then fine we

49:40

set idaho the side we do with

49:42

the federal law says and we all

49:44

go home for me are reading of

49:47

course is that there is no conflict

49:49

and so as doctors aren't having to

49:51

make this choice of do i follow

49:53

and taller to i found your representation

49:56

on that on behalf of idaho is

49:58

that if a an emergency room physician

50:00

in Idaho follows IMTALA in

50:02

terms of when an abortion

50:05

is required to stabilize a patient.

50:08

They will be complying with Idaho law

50:10

such that there's going to be no

50:12

prosecution and no problem. Yes, because they

50:14

have to comply with Idaho law to

50:16

comply with IMTALA. No,

50:19

no. I'm asking you if they

50:22

comply with IMTALA, will

50:24

they necessarily have satisfied

50:27

the requirements of Idaho law because that's

50:29

what you seem to say in response

50:31

to Justice Kavanaugh and in response to

50:33

Justice Barrett. So I just want to

50:36

make clear if that's the position

50:38

of the state. The

50:40

scope of IMTALA stabilization requirement

50:42

is necessarily determined by Idaho

50:44

law in this case. So

50:48

no, you're saying if they follow Idaho law,

50:50

then they will be following IMTALA law. I

50:53

think it's both, Your Honor. No, it's not.

50:56

I'd like for you to entertain the

50:58

other possibility. You

51:00

seem to be saying every

51:03

situation in which the United

51:05

States says here's a

51:07

stabilization situation that the United States

51:09

would say the person has to

51:11

have an abortion, the physicians would

51:14

say we're following IMTALA and abortion

51:16

is required. I thought you

51:18

said in response to Justice Kavanaugh, yes,

51:20

Idaho law would also say that's the

51:22

situation in which an abortion is allowed.

51:25

If that's the case, then it

51:27

seems to me there is no daylight,

51:30

there's no conflict, as you said, but

51:32

it's because Idaho law is in full

51:36

compliance with what the federal law is saying.

51:38

We're getting it wrong, you're saying, like this

51:40

death thing, that's not what we really mean.

51:43

What we mean is whenever it's

51:45

necessary to stabilize a patient who

51:47

is experiencing deterioration as federal law

51:49

requires. No, I

51:52

think I understand the point that you're making

51:54

and the

51:57

best way that I can think of it, Your Honor,

51:59

is that And Paula's stabilization

52:01

requirement requires medical judgment to

52:03

determine what is the appropriate

52:05

stabilizing treatment, right? And how

52:07

does a doctor exercise medical

52:09

judgment while his training, his

52:11

experience, perhaps reference to professional

52:14

standards of care that are national, but

52:16

necessarily state law standards as

52:18

well. How about that's not

52:20

just something you're sort of coming up with. I

52:22

mean, as Justice Kagan said at the beginning, Paula

52:25

tells the doctor how he's supposed to

52:28

decide it in this particular circumstance

52:30

with reference to the medical standards

52:32

of care concerning when a patient

52:35

is deteriorating in an emergency

52:38

condition situation. So if that's the

52:40

standard in IMTALA, are

52:43

you representing that that is exactly

52:45

what Idaho is saying so that

52:47

all the doctors need to do

52:49

is follow IMTALA and they'll be

52:51

fine under Idaho law? Well, of

52:53

course, we're saying that Idaho doctors

52:55

need to comply with IMTALA. The

52:58

question is how do doctors comply

53:00

with IMTALA? Let me ask

53:02

you another question. I think I

53:04

understand your point. You're saying Idaho could

53:06

actually be requiring more and

53:09

the federal law has to make them

53:11

or do what Idaho says.

53:13

Well, and it's important that IMTALA itself,

53:16

it codifies this presumption of a backdrop of

53:19

state law. There are background principles here. All

53:21

right, let me explore that with you for

53:23

just a second. I

53:25

had thought that this case was about preemption

53:28

and that the entirety of

53:30

our preemption jurisprudence is

53:33

the notion that the

53:35

federal government in certain

53:37

circumstances can make policy

53:39

pronouncements that differ from

53:42

what the state may want or what anybody

53:44

else may want and the supremacy clause

53:46

says that what the federal government says

53:48

takes precedent. So you've been

53:50

saying over and over again, Idaho is

53:52

a state and we have healthcare policy

53:55

choices and we've made, we've

53:57

set a standard of care in this situation. All

53:59

that's true. But the question

54:01

is, to what extent can the federal

54:03

government say, no, in this situation, our

54:06

standard is going to apply? That's

54:08

what the government is saying, and I don't

54:10

understand how consistent with our preemption jurisprudence you

54:12

can be saying otherwise. Yeah, and if I

54:14

could put a finer point on it. I

54:16

don't think it's the question is necessarily what

54:19

can Congress do, but what did Congress do

54:21

here with Intolla? All right. So what did

54:23

it do here? Yeah, it

54:25

started. It opened the Medicare Act by

54:27

saying the federal government shall not control

54:29

the practice of medicine. And then in

54:31

Intolla itself, it says state laws are

54:33

not preempted. And then when you get

54:35

to- State laws are not preempted to

54:37

the extent of a direct conflict. Of

54:40

a direct conflict. Of a direct conflict. And so now

54:42

we are identifying a direct conflict. Why?

54:46

So why is preemption not working there? And

54:48

whether there's a direct conflict based on this

54:50

court's longstanding precedent includes clear statement canons that

54:52

we think we went on the text. Let

54:55

me be very clear. The text to us is very clear.

54:57

It's an easy question. But the government's

54:59

got to overcome a lot of other hurdles. I

55:01

hear you saying two things. There's not a direct

55:03

conflict because everything we- the federal

55:05

government requires we allow, which the

55:08

amici physicians for human rights who've looked

55:10

at Idaho's law and says it prevents

55:13

a lot of things in

55:15

circumstances in which the federal government would require

55:17

them. They disagree with you on

55:19

the facts. But anyway, you say no

55:22

conflict because we actually are doing exactly

55:24

what- or allowing exactly what the federal

55:26

government allows. And you

55:28

say no conflict because the federal

55:30

government in this situation wanted states

55:32

to be able to set the

55:34

standards. And I guess

55:36

I don't understand how that's even

55:38

conceivable given this standard, given

55:41

this statute that is coming

55:43

in to displace state

55:45

prerogatives. And if I can't convince you on the second, let

55:47

me add a third. Yes, please. And

55:49

they're the clear statement canons. So the

55:52

spending clause condition nature of this requires

55:54

Congress to speak clearly and unequivocally that

55:57

it is imposing an abortion mandate. That's

55:59

new. not here in the statute. And secondly, this

56:01

court's... But doesn't that make abortion different? I mean,

56:04

what do you mean? They say, provide

56:07

whatever is necessary to stabilize. So you're

56:09

saying they'd have to say, provide whatever

56:11

is necessary, including abortion. That's the

56:13

only way that is

56:15

taken account of here? No. What I'm saying is

56:18

when we go and look at

56:20

the phrase available and what it means, the

56:22

administration is saying, well, they're adding this tag

56:24

that says consistent with

56:27

state law. And we're saying, no, under the

56:29

clear statement, candidates of presumption against preemption, what

56:31

the government actually... What Congress would need to

56:33

do if it wanted to preempt this very

56:35

traditional area of state law is to put

56:37

a tag regardless of state law. And that

56:39

is missing. Thank you. Thank

56:41

you, counsel. General Prelugger. Mr.

56:44

Chief Justice, and may it please the court.

56:47

Emtales' promise is simple but

56:49

profound. No one who comes

56:51

to an emergency room in need of urgent treatment

56:54

should be denied necessary stabilizing care.

56:57

This case is about how that guarantee applies

57:00

to pregnant women in medical crisis. In

57:03

some tragic cases, women suffer emergency complications

57:05

that may continue their pregnancy a grave

57:07

threat to their lives or their health.

57:10

A woman whose amniotic sac has ruptured

57:12

prematurely, for example, needs immediate treatment

57:14

to avoid a serious risk of infection

57:16

that could cascade into sepsis and the

57:19

risk of hysterectomy. A

57:21

woman with severe preeclampsia can face a

57:23

high risk of kidney failure that could

57:25

require lifelong dialysis. In

57:27

cases like these, where there is no

57:29

other way to stabilize the woman's medical

57:31

condition and prevent her from deteriorating, Emtales'

57:34

plain text requires that she be

57:36

offered pregnancy termination as a

57:38

necessary treatment. And that's how this

57:40

law has been understood and applied for decades.

57:43

That usually poses no conflict with

57:46

state law. Even states that have

57:48

sharply restricted access to abortion after

57:50

dobs generally allow exceptions to safeguard

57:52

the mother's health. But Idaho

57:54

makes termination a felony punishable by years

57:57

of imprisonment unless it's necessary to prevent

57:59

the woman's I

58:01

think I understood my friend today to

58:03

acknowledge several times that there is daylight

58:05

between that standard and the necessary stabilizing

58:07

treatment that MTOLLA would require. And

58:10

the Idaho Supreme Court recognized the same

58:12

thing when it specifically contrasted the necessary

58:14

to prevent death exception and said it

58:16

was materially narrower than a prior Idaho

58:18

law that had a health exception that

58:20

tracked MTOLLA. The situation

58:23

on the ground in Idaho is showing the

58:25

devastating consequences of that gap. Today,

58:28

doctors in Idaho and the women in Idaho

58:30

are in an impossible position. If

58:32

a woman comes to an emergency room facing a

58:34

grave threat to her health but she isn't yet

58:36

facing death, doctors either have to

58:38

delay treatment and allow her condition to materially

58:41

deteriorate or they're airlifting her

58:44

out of the state so she can get the

58:46

emergency care that she needs. One hospital

58:48

system in Idaho says that right now it's

58:50

having to transfer pregnant women in medical crisis

58:52

out of the state about once every other

58:54

week. That's untenable

58:56

and MTOLLA does not count an infant. None

58:59

of Petitioner's interpretations fit with the text and

59:01

so they have tried to make this case

59:04

be about the broader debate for access to

59:06

abortion in cases of unwanted pregnancy. But

59:09

that's not what this case is about at all. Idaho's

59:11

ban on abortion is enforceable in virtually

59:13

all of its applications. But

59:16

in the narrow circumstances involving

59:18

grave medical emergencies, Idaho cannot

59:20

criminalize the essential care that

59:22

MTOLLA requires. I welcome

59:24

the court's questions. General,

59:27

are you aware of any other spending

59:30

clause legislation that

59:33

pre-amps criminal law?

59:36

With respect to criminal law in particular, Justice

59:38

Thomas, I'm not immediately thinking of relevant cases.

59:40

We have a whole string side of cases in our

59:43

brief at page 46 that

59:45

reflect times where the court has recognized

59:47

the preemptive force of spending clause legislation

59:49

including in situations where the funding restrictions

59:51

apply to private parties so that could

59:54

include the Coventry health case, for example.

59:56

Lee Deadwood is another example of this.

59:58

But I'm not immediately recalling. how that

1:00:00

would apply in criminal law. Of course, this Court

1:00:02

hasn't drawn those kinds of distinctions in recognizing the

1:00:04

force of the Supremacy Clause. Now,

1:00:07

normally when we have

1:00:10

a preemption case, it's

1:00:12

a regulated party who

1:00:15

is involved in a suit, and they use

1:00:17

it as an affirmative defense, for example, in

1:00:20

Y or something. In

1:00:23

this case, you are bringing an

1:00:26

action against the state, and the state's

1:00:28

not regulated. Are

1:00:31

there other examples of these types of

1:00:33

suits? Sure. I mean, there

1:00:35

are numerous examples where the United States has

1:00:37

sought to protect its sovereign interests in situations

1:00:40

where a state has done what Idaho has

1:00:42

done here and interposed a law that conflicts.

1:00:44

So I point to Arizona versus the United

1:00:46

States as an example of that. United States

1:00:49

versus Washington, there are a number of cases

1:00:51

where this Court has recognized that the federal

1:00:53

government can protect its interests in this kind

1:00:56

of preemption action. And as I mentioned before,

1:00:58

the Court has a long line of cases

1:01:00

recognizing that that preemption principle applies in the

1:01:02

context of federal funding restrictions that apply to

1:01:05

private parties, too. Even

1:01:07

when the party that you're bringing

1:01:09

the action against is not the

1:01:11

regulated party? That's correct, because what

1:01:13

Idaho has done here is directly interfered with

1:01:15

the ability of the regulated parties who have

1:01:17

taken these funds, federal funds with conditions attached,

1:01:20

from being able to comply with the federal

1:01:22

law that governs their behavior. Now, this is

1:01:24

an essential part of the bargain that the

1:01:26

federal government struck with hospitals in substantially investing

1:01:29

in their hospital systems. And what the state

1:01:31

has done is said, you,

1:01:33

through our operation of state law, are no

1:01:35

longer permitted to comply with this fundamental

1:01:37

stabilization requirement in Ebola in this

1:01:39

narrow category of cases. Well,

1:01:42

normally, wouldn't it be the

1:01:44

regulated party that would actually

1:01:46

be asserting the preemption that

1:01:49

you're talking about? Certainly, I

1:01:51

can imagine situations, for example, where a

1:01:54

regulated party would assert a preemption defense

1:01:56

and to say that state law itself

1:01:58

is preempted to the extent prevents that party

1:02:00

from being able to comply with federal law. But

1:02:02

I'm not aware of any principle or precedent in

1:02:04

this court's case law to suggest that that's the

1:02:07

only way for the government to protect its sovereign interest.

1:02:09

That is the normal way, though. I think

1:02:11

that that's often the fact pattern of particular cases.

1:02:16

I don't understand how your

1:02:18

argument about preemption here squares

1:02:21

with the theory of spending

1:02:23

clause of

1:02:26

Congress's spending clause power. The theory

1:02:28

is Congress can tell a state

1:02:31

or any other entity

1:02:33

or person, look, here's some money or

1:02:35

other thing of value, and if you

1:02:37

want to accept it, fine, then you

1:02:39

have to accept certain conditions. But

1:02:42

how does the

1:02:44

Congress's ability to do that authorize

1:02:48

it to impose duties on

1:02:50

another party that

1:02:52

has not agreed to accept this

1:02:55

money? There are

1:02:57

no duties being imposed on Idaho

1:02:59

here. It's not required to provide

1:03:01

emergency stabilizing treatment itself. The duties

1:03:03

are off. Well, all right, not

1:03:06

duties. How can you impose restrictions

1:03:08

on what Idaho can criminalize simply

1:03:10

because hospitals in Idaho have chosen to

1:03:13

participate in Medicare? I don't understand how

1:03:15

this squares with the whole theory of

1:03:17

the spending clause. Well, I

1:03:19

think that it squares with this court's long line

1:03:21

of precedent cited at page 46. Well, I've

1:03:24

looked at those cases. I haven't

1:03:26

found any square discussion of this particular issue,

1:03:28

but I'm interested in the theory. Can

1:03:30

you just explain how it works in theory?

1:03:33

Sure. So spending clause legislation

1:03:35

is federal law. It's passed by both

1:03:37

houses of Congress. It's signed by the

1:03:39

president. It qualifies as law within the

1:03:41

meaning of the supremacy clause. Absolutely.

1:03:44

Absolutely. And so I think the supremacy clause

1:03:46

dictates the relevant principle here. What's the law?

1:03:49

I'll let you finish. Go ahead. In

1:03:52

a situation where Congress has enacted law,

1:03:54

it has full force and effect under the supremacy

1:03:56

clause. And what a state can do is interpose

1:03:59

its own law. as a direct obstacle

1:04:01

to being able to fulfill the federal

1:04:03

funding conditions. And this theory, Justice Alito,

1:04:05

will mean no conditions under Medicare are

1:04:08

enforceable. No, they're absolutely enforceable against the

1:04:10

hospital that chooses to participate. Well,

1:04:13

I guess the argument then would be that if

1:04:15

a hospital is instead bound by the state law

1:04:17

and the state law gets to control, it would

1:04:20

mean that hospitals couldn't participate in Medicare at all.

1:04:22

And that's not the argument that the state's making

1:04:24

here. What it wants is for its hospitals to

1:04:26

be able to accept Medicare funding but not have

1:04:29

to face the restrictions that are attached to those

1:04:31

funds as an essential part of the bargain. And

1:04:33

there is no precedent to support that outcome. Well,

1:04:36

I just don't think, I don't understand

1:04:39

how the theory works. But

1:04:41

let me move on to something else. I'm

1:04:44

going to try to restate your general theory,

1:04:46

and I want you to tell me if

1:04:48

this is right. I

1:04:50

think your argument is if a woman goes

1:04:53

to an emergency room and she has

1:04:55

a condition that requires an abortion in

1:04:57

order to eliminate, quote-unquote,

1:05:00

serious jeopardy to her,

1:05:02

quote-unquote, health, the

1:05:04

hospital must perform the abortion or

1:05:06

transfer the woman to another hospital where that

1:05:08

can be done. Is that a fair statement

1:05:10

of your argument? So it includes

1:05:12

not just serious jeopardy to her health, but

1:05:14

obviously also serious dysfunction of her bodily organs

1:05:17

or serious impairment of the bodily function. And

1:05:19

the other caveat I would make is that

1:05:21

it would require pregnancy termination only in a

1:05:24

circumstance where that's the only possible way to

1:05:26

stabilize her and prevent that cascade of health

1:05:28

consequences. Does

1:05:31

this apply at any point in pregnancy? So

1:05:35

the pregnancy complications that we have focused

1:05:37

on generally occur in early pregnancy, often

1:05:39

before the point of viability. There can be

1:05:41

complications that happen after viability, but they are the

1:05:43

standard of carer to deliver the baby if you

1:05:45

need the pregnancy to end because it's causing these

1:05:48

severe health consequences for the mom. Well,

1:05:50

what if it occurs at a point

1:05:52

where delivering the baby

1:05:54

is not an option? You're out of the third

1:05:56

trimester, but it's really not an option to deliver

1:05:58

the baby. You said that

1:06:00

you're in the third trimester? No, I'm sorry, out of

1:06:02

the first trimester. So if you're

1:06:05

contemplating a situation where delivery is not

1:06:07

an option, then I think in that

1:06:09

circumstance, if the only way to prevent

1:06:11

grave risk to the woman's health or life

1:06:13

is for the pregnancy to end and termination

1:06:15

is the only option, then yes, that's the

1:06:17

required pair that Mtala has through its

1:06:19

stabilization mandate. But critically, in many of

1:06:22

these cases, the very same pregnancy complication

1:06:24

means the fetus can't survive regardless. I

1:06:26

understand that. There's not going to

1:06:28

be any way to sustain that pregnancy. Let

1:06:30

me ask you squarely the question that was

1:06:33

discussed during Mr. Turner's

1:06:35

argument. Does the term health

1:06:38

in Mtala mean just physical health

1:06:41

or does it also include mental

1:06:43

health? There can be

1:06:45

grave mental health emergencies, but Mtala could

1:06:47

never require pregnancy termination as the stabilizing

1:06:49

care. Why? And

1:06:52

here's why. It's because that wouldn't do anything

1:06:54

to address the underlying brain chemistry issue that's

1:06:56

causing the mental health emergency in the first

1:06:58

place. This is not about mental health generally.

1:07:00

This is about treatment by VR doctors in

1:07:02

an emergency room. And when a woman comes

1:07:04

in with some grave mental health emergency, if she

1:07:07

happens to be pregnant, it would be incredibly

1:07:09

unethical to terminate her pregnancy. She might not

1:07:11

be in a position to give any informed

1:07:13

consent. Instead, the way you treat mental health

1:07:15

emergency is to address what's happening in

1:07:17

the brain. If you're having a psychotic

1:07:19

episode, you administer antipsychotics. I really want

1:07:22

a simple, clear-cut answer to this question

1:07:24

so that going forward, everybody will know

1:07:26

what the federal government's position is. Does

1:07:29

health mean only physical health

1:07:31

or does it also include mental health?

1:07:34

With respect to what qualifies as an

1:07:36

emergency medical condition, it can include grave

1:07:38

mental health emergencies. But let me be

1:07:40

very clear about our position. That could

1:07:42

never lead to pregnancy termination because that

1:07:44

is not the accepted standard of practice

1:07:46

to treat any mental health emergency. What

1:07:49

is the term serious jeopardy in

1:07:53

E11, little

1:07:55

i, mean

1:07:57

an immediate serious risk or

1:08:00

may a risk of serious consequences at some

1:08:02

future point suffice? The standard

1:08:04

is defined in terms of whether you

1:08:07

need immediate medical treatment. So the relevant

1:08:09

question is, in the absence of immediate

1:08:11

medical treatment, are you going to have this

1:08:13

serious jeopardy to your health, dysfunction of

1:08:15

your organs, will your bodily system start

1:08:17

shutting down? So it is pegged

1:08:19

to the urgency of acute care in an emergency

1:08:21

room. So it has to be immediate. The

1:08:24

relevant standard under the statute is phrased

1:08:26

in terms of whether these consequences will

1:08:28

occur without immediate treatment.

1:08:30

Yes, so it's focused on the interaction between

1:08:33

having some kind of urgent health crisis that takes

1:08:35

you to an emergency room in the first place

1:08:37

and then how proximate these consequences are

1:08:39

likely to be. Well, there are two

1:08:41

different things there. Whether the person is,

1:08:43

whether the woman is in immediate jeopardy

1:08:46

or whether the person, the woman

1:08:48

needs immediate care in order

1:08:50

to eliminate jeopardy at a later

1:08:53

point. So I understand your

1:08:55

answer to be that the

1:08:58

woman need not be in immediate jeopardy, but

1:09:01

if she doesn't get care right

1:09:03

away, jeopardy at some future point

1:09:05

may suffice. So the

1:09:07

statutory standard itself is focused on immediate

1:09:09

health risks. It's looking at the possibility

1:09:12

that if the woman doesn't get treatment

1:09:14

then and there, what will happen,

1:09:16

what will reasonably be expected to occur is

1:09:18

that her organs start shutting down or

1:09:21

she might lose her fertility or have other

1:09:23

serious health consequences. It is focused on this

1:09:25

temporal link between the immediate need for treatment,

1:09:28

which is, I think, reflective of the

1:09:30

fact that Congress was narrowly focused on

1:09:32

this emergency acute medical situation. Do

1:09:35

the terms impairment to bodily

1:09:37

functions or serious dysfunction of

1:09:40

any bodily organ or part refer

1:09:43

only to permanent impairment or

1:09:45

dysfunction? Or does

1:09:47

it also refer

1:09:50

to temporary impairment

1:09:52

or dysfunction? I

1:09:55

think it can also refer to temporary impairment, but

1:09:57

I'm not sure that it's easy to parse the

1:09:59

two. For example, a lot of times

1:10:01

a pregnant woman in distress, she might start

1:10:03

suffering liver damage or kidney malfunction and you

1:10:05

don't know ex ante whether that's going to

1:10:07

be permanent or not. The instruction

1:10:09

that Congress gave in Mtala is you need to

1:10:11

stabilize to guard against those very serious health risks.

1:10:14

General, I'd like to

1:10:18

just understand kind of the scope of your

1:10:20

argument here on the Supremacy Clause and how

1:10:22

it operates in your mind, putting

1:10:25

aside this case. Would

1:10:27

the federal government condition

1:10:29

the receipt of funds on hospitals

1:10:31

that they comply with medical

1:10:34

ethics rules provided for by the

1:10:36

federal government, a medical

1:10:38

malpractice regime and a medical

1:10:40

licensing regime such

1:10:43

that effectively all

1:10:46

state medical malpractice laws, all state

1:10:49

medical licensing laws would be preempted?

1:10:52

And you're imagining that this is regulatory action

1:10:54

or that Congress has passed the statute creating

1:10:56

kind of a federal malpractice regime? You call

1:10:58

it. I mean, I think I have

1:11:01

a broad view of Congress's authority to enact

1:11:03

statutes and so what I want to assess

1:11:05

in that situation is whether Congress is

1:11:07

acting pursuant to one of its enumerated

1:11:09

powers. Spending Clause, it's all Spending Clause.

1:11:11

Yeah, so I think that very likely Congress could

1:11:13

make those kinds of judgments and attach conditions to

1:11:15

the receipt of federal funds and in Medicare there

1:11:17

are substantial conditions. Even if it covers all

1:11:20

hospitals in the state and effectively transforms

1:11:22

the regulation of medicine into a

1:11:25

federal function. There might

1:11:27

be a point at which this court thinks

1:11:29

that it's really encroaching on the state's prerogatives

1:11:31

in ways that are inconsistent with our constitutional

1:11:33

structure but I don't think we're anywhere close

1:11:35

to that. But do you see any bounds

1:11:37

just in principle? I think the bounds would

1:11:39

have to come from this court's case law

1:11:42

concerning federalism principle. The court

1:11:44

has said in cases like Gonzalez versus Oregon

1:11:46

that of course the federal government has authority

1:11:48

to comprehensively regulate on health and safety including

1:11:50

with respect to medical care and so I

1:11:52

don't think that there's any principle of exclusive

1:11:54

governance of this area by the state. But

1:11:57

obviously I'm sure you could construct hypotheticals that really seem to be

1:11:59

a good to be the federal government entirely taking

1:12:01

over a state function, and maybe that would be

1:12:03

subject to a different principle. And,

1:12:06

and, and, and, and, and Medicare allow

1:12:09

the federal government to enforce the

1:12:12

Intala dictate through civil monetary

1:12:14

penalties? That's correct. Yes.

1:12:17

And also you can terminate the Medicare agreements

1:12:19

if a hospital violates Intala

1:12:22

in your view? Yes. Generally

1:12:24

the hospital is given the opportunity to come

1:12:26

into compliance and to develop a plan to

1:12:28

ensure that there won't be future Intala violations.

1:12:31

It would obviously be an extreme sanction to

1:12:33

terminate Medicare funding, but that is a possibility.

1:12:36

And there's also a private right

1:12:38

of action for Intala violations that

1:12:40

have the possibility of equitable relief

1:12:42

as well. Yes.

1:12:44

Certainly monetary relief and possibly

1:12:46

equitable relief as well. In

1:12:48

this case, you brought an equitable cause

1:12:51

of action. You didn't cite

1:12:53

any statute to

1:12:56

enforce Intala. And one of the

1:12:58

rules in equity, traditionally at least,

1:13:00

is that you don't get an

1:13:02

equitable relief if there's an adequate

1:13:04

remedy at law. And

1:13:07

as we just discussed, there's a pretty

1:13:09

reticulated statute here. Seminole

1:13:11

tribe says when you have a reticulated

1:13:14

statute and lots of remedial options, you

1:13:16

don't get equitable relief. Thoughts?

1:13:19

So let me say at the outset

1:13:21

that the United States has long been

1:13:23

recognized to have an action

1:13:25

in equity, an inherent action in equity to

1:13:28

appeal to the courts of this

1:13:30

nation to protect its sovereign interests.

1:13:32

It's been reflected in things like- It's

1:13:34

been proprietary interests. You mentioned Washington and

1:13:36

you mentioned Arizona. Arizona versus the United

1:13:39

States is another example of that. Arizona

1:13:41

was, sorry to interrupt, but Arizona was

1:13:43

an immigration case and border and

1:13:46

Washington was an attempt by a state to

1:13:48

impose its worker compensation laws on

1:13:51

the federal government in a way

1:13:53

different from others. I

1:13:55

take those points and equity is all about

1:13:58

proprietary interests and things like that. like that?

1:14:00

Do we have that here? Well,

1:14:02

I think that the court ... I want

1:14:04

to make sure to make clear that there

1:14:06

are a long line of cases that stand

1:14:08

for this principle, including cases that have addressed

1:14:10

it directly, like Inre Debs, Wyandotte. Oh, Debs?

1:14:13

Do you really want to rely on Debs,

1:14:15

General? I mean, that wasn't exactly our brightest

1:14:17

moment. I do think, though, that it

1:14:20

reflects the history and tradition of this nation

1:14:22

and recognizing that it's entirely appropriate for the

1:14:24

United States to seek to protect its interest in this

1:14:26

manner. And let me say, Justice Gorsuch, this is

1:14:28

a really important issue to the United States. It

1:14:30

wasn't passed upon. It happened briefly at all.

1:14:33

It's not jurisdictional. I'm just

1:14:35

trying to understand where it comes from. What

1:14:37

is the proprietary interest here? It

1:14:39

comes from ... It's your money and how

1:14:41

it's being spent, and Congress has

1:14:44

given you lots of tools. I

1:14:46

think it also comes from the recognition

1:14:48

under obstacle preemption principles that there are

1:14:50

important functions to be served by having

1:14:52

the Medicare program in place, and Idaho

1:14:54

has directly interfered with the ability of

1:14:56

hospitals to accept these federal funds when

1:14:59

they stand willing and able to comply

1:15:01

with M-TOL as mandates and fulfill Congress's

1:15:04

desire here to make sure that no matter where you are

1:15:06

in this country, if you have an urgent medical need and

1:15:08

you go to an ER, you can be stabilized. Thank you.

1:15:11

General, is there ... House hold. Your

1:15:13

friend on the other side said that

1:15:15

your position would require religiously

1:15:18

affiliated hospitals with emergency rooms

1:15:20

to perform abortions. Was he

1:15:22

right? No. My friend was

1:15:24

wrong. There are federal conscience protections that apply

1:15:26

at the entity level to hospitals as well.

1:15:29

The key provisions are in the Weldon Amendment

1:15:31

and also COTE SNOW, although that depends on

1:15:33

the residency program of a particular hospital. Now,

1:15:35

HHS said in a 2008 rulemaking

1:15:38

on conscience protections that it had never come

1:15:40

across a hospital that had a blanket

1:15:42

objection to providing life-preserving and health-preserving pregnancy

1:15:44

termination care, but if a hospital had

1:15:47

that kind of objection and HHS recently

1:15:49

informed me they still have not come

1:15:51

across that hospital, that would be honored

1:15:53

vis-a-vis HHS's enforcement ability. We said

1:15:55

that applies at the entity level.

1:15:57

Can individual doctors in the ...

1:16:00

emergency room, do they have a conscience objection?

1:16:02

Oh, yes. Yes, they're protected under the

1:16:04

church amendments principally. And our position is

1:16:06

that Mtala does not override either set

1:16:08

of conscience protections. So if an individual

1:16:10

doctor has a conscience objection to providing

1:16:13

pregnancy termination, Mtala itself imposes obligations at

1:16:15

the entity level, and the hospital should

1:16:17

have plans in place to honor the

1:16:19

individual doctor's conscience objection while ensuring appropriate

1:16:22

staffing for emergency care. Well, does that mean

1:16:24

that there must be somebody in the emergency

1:16:26

room that can provide

1:16:28

an abortion? What if there are two

1:16:31

doctors, three doctors, and they all have a

1:16:33

conscience exemption? No. In

1:16:35

that circumstance, Mtala could not override those individual

1:16:38

doctors' conscience protections. But my understanding is that

1:16:40

it's a matter of best practice because hospitals

1:16:42

want to be able to provide emergency care.

1:16:44

They do things like ask doctors to articulate

1:16:46

their objections in advance so that that can

1:16:49

be taken into account in making staffing decisions

1:16:51

and who's on call. Hospitals have a lot

1:16:53

of plans in place to be kinds of contingencies.

1:16:56

Are you saying that there must be somebody

1:16:58

available and on call in a hospital

1:17:01

of that sort? The conditions

1:17:03

of participation for Medicare require hospitals to

1:17:05

be appropriately staffed to provide emergency treatment. Now,

1:17:07

in a situation where a hospital doesn't, hasn't

1:17:09

done that, and it doesn't have anyone on

1:17:11

hand who can provide care, you know, maybe

1:17:13

all of the doctors called in sick that

1:17:15

day and there's just literally no one in

1:17:18

the emergency room, or in this case, if

1:17:20

everyone had a conscience objection, then the hospital

1:17:22

would not be able to provide the care.

1:17:24

But there are conditions of participation that are

1:17:26

meant to ensure that there is good governance

1:17:28

of hospitals and organization to account for these situations.

1:17:30

When you say any consequence of them not being

1:17:32

able to provide the care would be what? In

1:17:35

that circumstance, I think they would likely be out

1:17:37

of compliance with the conditions of participation that require

1:17:39

them to be appropriately staffed. But if the question

1:17:42

is, could you force an individual doctor to step

1:17:44

in then over a conscience objection, the answer is

1:17:46

no. And I want to be really clear

1:17:48

about that. I know, but the question... You

1:17:50

don't need to stand on Mtala to displace

1:17:52

it. The question is whether or not they

1:17:54

must have available someone who can comply the

1:17:56

procedures required by Mtala. And what would be the

1:17:58

consequence if they didn't? would it be

1:18:01

eventual termination of their participation in

1:18:03

Medicare? That's right. So if a

1:18:05

hospital was continually disobeying the

1:18:07

requirement to have in place sufficient personnel

1:18:09

to run their emergency room, then I

1:18:12

imagine that HHS, with through enforcement action,

1:18:14

work with that hospital to try to

1:18:16

bring it into compliance. And if the

1:18:18

hospital ultimately is just leaving itself in

1:18:20

a position where it can never provide

1:18:22

care, then it would terminate the Medicare

1:18:24

funding agreement. I thought you just said a minute ago, I'm sorry.

1:18:26

Oh, no, go ahead. I thought you'd, I just want to clarify

1:18:29

this colloquy. I thought you said a

1:18:31

minute ago, though, that the hospital had

1:18:33

a conscious objection and therefore didn't provide

1:18:36

certain care, that that wouldn't render

1:18:39

it out of compliance, which is it?

1:18:41

That's correct. The hospital could assert a

1:18:43

conscious objection and EMTALA would not override

1:18:45

that. My question, I have a question about

1:18:47

the Hyde Amendment. So I gather from

1:18:49

the briefing that there might be some situations in

1:18:51

which EMTALA would require an abortion, but the Hyde

1:18:53

Amendment wouldn't permit federal funds to be used to

1:18:56

pay for it. And you said in your brief

1:18:59

that EMTALA requires in other

1:19:01

circumstances as well stabilizing

1:19:03

treatment to be given that federal

1:19:06

funds don't cover. Can you give an example of that? And am

1:19:08

I right about the Hyde Amendment and then can you give

1:19:10

an example of that? Yes. So you are

1:19:12

right about both things. It is common under

1:19:14

EMTALA that hospitals are going

1:19:17

to have to provide care where there's not federal funding

1:19:19

available. And I'll give you an example of a Medicare patient

1:19:21

who goes in and his emergency medical condition

1:19:24

means he needs a particular drug that's not covered by Medicare

1:19:27

benefits. Still the hospital has to provide

1:19:29

him with stabilizing treatment and give him that medication

1:19:31

even though the federal funding isn't going to

1:19:33

pay for it. And that also applies to people who are

1:19:36

uninsured, who aren't covered by Medicare in the first

1:19:38

instance. The whole point of EMTALA was it doesn't

1:19:41

matter your circumstances, it doesn't matter whether you can

1:19:43

pay or not, it doesn't matter the particulars of

1:19:45

your situation, this is a

1:19:47

guarantee you can get stabilizing treatment. I

1:19:49

want to say though that I don't think

1:19:52

there's any inconsistency between the lines Congress drew

1:19:54

in EMTALA and Hyde and Congress itself has

1:19:56

recognized that these statutes address discrete issues. thinking

1:20:00

here of the provision in the Affordable Care

1:20:02

Act that was exclusively about abortion, and there

1:20:04

Congress said, nothing in the

1:20:06

ACA displaces Hyde and the other

1:20:08

federal funding restrictions on abortion, but

1:20:11

also nothing in the ACA displaces

1:20:13

and tallest requirement to stabilize. And that

1:20:15

shows two things. It shows first that

1:20:17

Congress recognized that stabilizing care can

1:20:19

sometimes be pregnancy termination, and I

1:20:21

think it also showed Congress's recognition that

1:20:24

these statutes address their own distinct spheres.

1:20:26

And one final point on Hyde, Justice Barrett. My

1:20:29

friend isn't drawing a line based on Hyde either,

1:20:31

because his point is, even if the woman is

1:20:33

on the brink of death and she goes to

1:20:35

an emergency room and there are federal funds available

1:20:38

under Hyde to treat her, still, hospitals have no

1:20:40

obligation under M. Tala to provide that care. So

1:20:43

what about the clock we always having

1:20:45

with your friend about what stabilizing treatment

1:20:48

entails? Let's imagine a situation which

1:20:50

a woman is, I don't know, 10 weeks,

1:20:53

and is told that if you

1:20:56

carry this pregnancy to term, it could have consequences

1:20:58

for your health, but you just

1:21:01

would need to abort before,

1:21:03

say, 15 weeks, something like

1:21:05

that. So there's not an immediacy. So

1:21:07

she's stable when she leaves the hospital, but

1:21:10

in Idaho, there's no place else that she

1:21:12

can go, at least until she's 15 weeks. What

1:21:15

is the federal government's position then? I

1:21:18

think, if I'm understanding the hypothetical correctly, that

1:21:20

she likely wouldn't have an emergency medical condition

1:21:23

in the first place, because the definition of

1:21:25

having an emergency medical condition is that without

1:21:27

immediate treatment, you will reasonably be expected

1:21:31

to have serious dysfunction of your organs

1:21:33

or serious impairment of your bodily functions. And

1:21:35

so in that situation where a woman is

1:21:37

somewhat high risk, maybe she has

1:21:39

certain complications where doctors

1:21:42

can say, there's some danger with continuing this

1:21:44

pregnancy, I don't think that that creates the

1:21:46

kind of emergency medical condition that M. Tala

1:21:48

is aimed at. Okay, last question, and this

1:21:50

is about the spending clause issue. So

1:21:52

it does seem odd, and I think kind of what

1:21:55

some of the questions are getting at, it does seem

1:21:57

odd that through a side agreement between a private entity

1:21:59

and the federal government, that the private entity

1:22:01

can get out of state law,

1:22:03

right? So in

1:22:05

another administration, would it

1:22:07

be possible then in reliance on the spending

1:22:09

power for Congress

1:22:11

to say, you know, any hospital that

1:22:14

takes these funds cannot

1:22:16

perform abortions or any hospital,

1:22:18

despite state law requiring a state

1:22:20

constitutional amendment requiring abortion to be

1:22:22

available? Is that possible? Or, you

1:22:25

know, with gender reassignment surgery? And

1:22:27

you can imagine it kind of

1:22:29

going back and forth through spending

1:22:31

clause litigation in ways that would

1:22:33

be unusual. Yes, I think

1:22:35

Congress has broad power under the spending clause

1:22:37

to attach conditions. Now it doesn't mean that

1:22:39

it's wholly unlimited. Obviously, Congress would be having

1:22:42

to act pursuant to an enumerated power. It

1:22:44

would have to comply with other constitutional limits.

1:22:46

And so the law would have to be

1:22:48

valid. The spending clause itself has built in

1:22:51

limits, things like relatedness and- So it would

1:22:53

have to be acting pursuant to an enumerated

1:22:55

power in forbidding gender

1:22:58

reassignment surgery or abortion or

1:23:00

those sorts of things. Oh no, I just meant that it

1:23:02

would have to be valid. The spending clause itself would be enough.

1:23:04

Yes, so we think the spending clause itself would be enough. So just

1:23:07

to follow up on that, and going back to where I started with,

1:23:10

could the federal government essentially regulate the practice

1:23:12

of medicine in the states through the spending

1:23:14

clause? The answer, I

1:23:16

think, is yes, Congress could

1:23:18

prohibit gender reassignment surgeries across

1:23:21

the nation. It could

1:23:23

ban abortion across the nation through

1:23:26

the use of its spending clause authority, right?

1:23:29

Congress does have broad authority under the

1:23:31

spending clause, and yes, if it satisfies

1:23:33

the conditions that the spending clause itself

1:23:35

requires, then I think that that would

1:23:37

be valid legislation. And the court had

1:23:40

in many contexts recognized the spending clause

1:23:42

legislation preempts. So yes, the

1:23:44

answer is yes, okay. So

1:23:46

how do we reconcile that with the statement

1:23:48

in 1395 that

1:23:51

nothing in this sub-chapter allows a

1:23:53

federal officer to exercise any control

1:23:56

over the practice of medicine? So

1:23:59

at the outset... I think if Congress itself

1:24:01

is doing it, then that provision is inapplicable

1:24:03

by its own terms. That's looking

1:24:05

at the... Don't think it informs

1:24:07

our view and understanding of the

1:24:09

statute in any way? Well,

1:24:12

I think in the event of some kind of direct

1:24:14

conflict, you know, looking at them tall in particular,

1:24:16

it's the later in time enacted statute and

1:24:18

it's clearly more specific, so it would control.

1:24:20

But this Court itself has rejected the idea

1:24:23

that there would be that kind of conflict. And

1:24:25

I'm thinking of the CMS vaccine case where

1:24:27

the litigants relied on this exact same provision of the

1:24:29

Medicare Act, Section 1395, and this Court said, no, that

1:24:34

can't bear the weight that those litigants would place on it or

1:24:36

it would call into question all of the conditions of

1:24:38

participation in Medicare. Do you agree

1:24:40

that our clear statement rule with

1:24:42

respect to spending clause legislation, our

1:24:45

clear statement rule with respect to federalism are in

1:24:47

play here? I think

1:24:49

that here Congress has spoken clearly with

1:24:51

respect to what providers are supposed to do. I

1:24:54

think that's a question. Do you think those presumptions apply?

1:24:57

Forget about whether you can satisfy

1:24:59

them. The requirement of clear

1:25:01

notice under spending clause legislation, yes, I think

1:25:03

that that does apply and providers have

1:25:06

always understood their obligations under M-TALA. General,

1:25:08

let me ask you to

1:25:10

respond to a couple of things

1:25:12

Petitioner's counsel said and just give

1:25:14

you the opportunity to respond. He

1:25:18

suggested or said that you

1:25:20

haven't identified a circumstance in

1:25:22

which something that M-TALA requires

1:25:24

Idaho wouldn't allow. I didn't

1:25:26

get a chance to ask

1:25:28

him, but I took him

1:25:31

to sort of mean that

1:25:34

the way that Idaho statute operates,

1:25:36

it basically allows for a doctor

1:25:38

to say, well, in my

1:25:40

view, this health-threatening circumstance could eventually

1:25:43

lead to death and so I'm

1:25:45

going to do it. To the

1:25:48

extent that doctors are still

1:25:50

able to do that, I guess,

1:25:52

he's saying there's no preemption, but

1:25:55

is it true that there really

1:25:57

isn't in operation a different

1:26:00

between the two, the, the Impala and

1:26:02

what Idaho has required here? No, that

1:26:04

is gravely mistaken on three levels. It's

1:26:06

inconsistent with the actual text of the

1:26:08

Idaho law. It's inconsistent with medical reality

1:26:11

and it's inconsistent with what's happening on

1:26:13

the ground. And this is a really

1:26:15

important point. So let me try to

1:26:17

unpack there. On the text

1:26:19

itself, Idaho's law only allows termination if

1:26:21

it's necessary to prevent death. And that

1:26:23

is textually very narrow compared to what

1:26:26

Impala requires. It's a category of harm

1:26:28

to begin with. In Idaho, doctors have

1:26:30

to shut their eyes to everything except

1:26:32

death. Whereas under Impala, you're supposed to

1:26:34

be thinking about things like, is she

1:26:36

about to lose her fertility? Is her

1:26:38

uterus going to become incredibly scarred because

1:26:40

of the bleeding? Is she about to

1:26:42

undergo the possibility of kidney failure? So

1:26:45

I think that that is one critical

1:26:47

distinction. The other critical textual distinction is

1:26:49

the idea of necessity. Under Idaho law,

1:26:51

you have to conclude that death will

1:26:53

necessarily result, which is also materially different.

1:26:56

And the Idaho Supreme Court specifically recognized

1:26:58

it. Second, with respect to the actual

1:27:00

medical reality here, there are

1:27:03

numerous conditions that we are worried about.

1:27:05

Where a doctor's immediate concern is not

1:27:07

death, that's a far more remote possibility.

1:27:09

They're thinking about the health circumstances that

1:27:11

Impala guards against. And let me give

1:27:13

you two examples. The first is PPROM,

1:27:15

premature rupture of the membranes. We have

1:27:17

declarations at 594 that explain this in detail

1:27:19

and also at JA 615 to 617. What

1:27:23

the doctors explained there, this is Dr. Fleischer

1:27:25

and Dr. Cooper, is a woman comes in

1:27:27

with PPROM, her sac is ruptured. There's no

1:27:29

chance the fetus is going to be able

1:27:31

to survive. But at that point, she doesn't

1:27:33

have active signs of infection. And so until

1:27:35

she deteriorates, you can't think she's close to

1:27:37

death. What you're worried about is she will

1:27:39

become infected. She might develop sepsis. She might

1:27:41

have these dramatic consequences for her future. But

1:27:43

it's not about death. So I think that

1:27:45

is one example where you can't do it.

1:27:47

And then finally, just the actual practice on

1:27:50

the ground. Women in Idaho today are not

1:27:52

getting treatment. They're getting airlifted out of the

1:27:54

state to Salt Lake City and to neighboring

1:27:56

states where there are health exceptions in their

1:27:58

laws because the doctors... are facing mandatory

1:28:01

minimum, two years in prison, loss

1:28:03

of their license, criminal prosecution. The

1:28:05

doctors can't provide the care because

1:28:07

until they can conclude that a

1:28:09

prosecutor looking over their shoulder won't

1:28:11

second guess that maybe it wasn't

1:28:14

really necessary to prevent death. Thank you,

1:28:16

counsel. Justice Thomas? Justice

1:28:18

Alito? We've

1:28:21

now heard, let's see, an

1:28:25

hour and a half of argument on this

1:28:27

case. And

1:28:29

one potentially very

1:28:31

important phrase in MTALA

1:28:34

has hardly been mentioned. Maybe

1:28:37

it hasn't even been mentioned at all.

1:28:39

And that is MTALA's reference to the

1:28:41

woman's quote, unquote unborn child. Isn't

1:28:46

that an odd phrase to put

1:28:48

in a statute that imposes

1:28:50

a mandate to perform abortions? Have you

1:28:52

ever seen an abortion statute that uses

1:28:55

the phrase unborn child? It's

1:28:57

not an odd phrase when you look at what Congress was doing

1:28:59

in 1989. There were

1:29:02

well-publicized cases where women were experiencing conditions, their

1:29:04

own health and life were not in danger,

1:29:06

but the fetus was in grave distress and

1:29:08

hospitals weren't treating them. So what

1:29:10

Congress did is that it is- Well, have

1:29:13

you seen abortion statutes that

1:29:15

use the phrase unborn child? Doesn't

1:29:18

that tell us something? It tells

1:29:20

us that Congress wanted to expand the protection

1:29:22

for pregnant women so that they could get the

1:29:24

same duties to screen and stabilize when they have

1:29:27

a condition that is threatening the health and wellbeing

1:29:29

of the unborn child. But what

1:29:31

it doesn't suggest is that Congress simultaneously

1:29:33

displaced the independent pre-existing obligation to treat

1:29:35

a woman who herself is facing grave

1:29:38

life and health consequences. Let's walk through

1:29:40

the provisions of the statute that

1:29:43

are relevant to this issue regarding

1:29:45

the status and the potential interests

1:29:47

of an unborn child. Chapter

1:29:50

B1, if a woman goes to

1:29:52

a hospital with an emergency

1:29:54

medical condition, that's the phrase,

1:29:57

the hospital must either stabilize the condition or understand

1:29:59

the condition. some circumstances, transfer

1:30:03

the woman to another facility. So

1:30:05

we have this phrase emergency medical

1:30:07

condition in that provision and then

1:30:09

under E1, the term

1:30:12

emergency medical condition is defined

1:30:14

to include a condition

1:30:17

that places the health of

1:30:20

the woman's unborn child in

1:30:22

serious jeopardy. So in

1:30:25

that situation, the hospital must

1:30:27

stabilize the threat to the

1:30:29

unborn child. And it seems that the plain

1:30:31

meaning is that the hospital

1:30:34

must try to eliminate any immediate threat

1:30:36

to the child, but performing an abortion

1:30:38

is antithetical to that duty. But

1:30:42

you go so far as to say that the statute

1:30:44

is clear in your favor. I don't know how you

1:30:46

can say that in light of those

1:30:48

provisions that I've just read to you. The

1:30:50

statute did nothing to displace the woman

1:30:52

herself as an individual with an emergency

1:30:54

medical condition when her life is in

1:30:56

danger, when her health is in danger.

1:30:58

That stabilization obligation equally runs to her

1:31:01

and it's clear that the hospital has

1:31:03

to give her necessary stabilizing treatment. And

1:31:05

in many of the cases you're thinking

1:31:07

about, there is no possible way to

1:31:09

stabilize the unborn child because the fetus

1:31:11

is sufficiently before viability that it's inevitable

1:31:13

that the pregnancy is going to be

1:31:15

lost. But Idaho would deny women treatment in

1:31:17

that circumstance, even though it's senseless. Doesn't

1:31:21

what I've read to you show

1:31:23

that the statute imposes on the hospital

1:31:25

a duty to the woman, certainly,

1:31:27

and also a duty to the

1:31:29

child. And it doesn't

1:31:31

tell the hospital how it is

1:31:33

to adjudicate conflicts between those interests.

1:31:36

And it leads to that to

1:31:38

state law. Now maybe a lot,

1:31:40

most of your argument today has

1:31:43

been dedicated to the proposition that the Idaho

1:31:45

law is a bad law. And that may

1:31:47

well be the case. But what

1:31:49

you're asking us to do is to construe

1:31:51

this statute that was enacted

1:31:54

back during the Reagan administration and

1:31:57

signed by President Reagan to mean that

1:31:59

there's an obligation. under certain circumstances

1:32:01

to perform an abortion, even if doing that

1:32:03

is a violation of state law. If

1:32:06

Congress had wanted to displace protections for pregnant

1:32:08

women who are in danger of losing their

1:32:10

own lives or their health, then it could

1:32:12

have redefined the statute so that the fetus

1:32:15

itself is an individual with an emergency medical

1:32:17

condition. But that's not how Congress structured this.

1:32:20

Instead, it put the protection in to expand protection

1:32:22

for the pregnant woman. The duty still runs to

1:32:24

her, and in a situation where her own

1:32:26

life and health is gravely endangered, that

1:32:28

in that situation, I'm tall, it is clear. It says

1:32:31

the hospital has to offer her stabilizing treatment. She doesn't

1:32:33

have to accept it. These

1:32:35

are tragic circumstances, and many women want

1:32:37

to do whatever they can to save

1:32:39

that pregnancy, but the statute protects

1:32:41

her and gives her that choice. The

1:32:43

only way you try to get out

1:32:46

of the statutory interpretation that I

1:32:48

just posited is by

1:32:50

focusing on the term individual. And

1:32:53

you say, aha, in the dictionary act,

1:32:56

individual is defined to

1:32:58

exclude an unborn

1:33:00

child or a fetus. That's the only way

1:33:02

you can try to get out of what

1:33:05

I've just outlined. Isn't it

1:33:08

true that dictionary act

1:33:10

definitions apply only if

1:33:12

they are not inconsistent with the statutory

1:33:14

text? And when you have a text

1:33:17

that certainly you wouldn't dispute the fact

1:33:19

that the hospital has a duty to

1:33:21

the unborn child where the woman wants

1:33:23

to, wants

1:33:26

to have the pregnancy go to term, it's

1:33:29

indisputably protects the interests of

1:33:31

the unborn child. So it's inconsistent with

1:33:34

the definition in the dictionary

1:33:36

act. No, not at all. The

1:33:38

duty runs to the individual with the emergency

1:33:40

medical condition. The statute makes clear that's the

1:33:42

pregnant woman, and of course, Congress wanted to

1:33:44

be able to protect her in situations where

1:33:46

she's suffering some kind of emergency and her

1:33:48

own health isn't at risk, but the fetus

1:33:50

might die. That includes common things like a

1:33:52

prolapse of the umbilical cord into the cervix

1:33:55

where the fetus is in grave distress, but the woman is

1:33:57

not at all affected. Hospitals otherwise would...

1:34:00

didn't have an obligation to treat her, and

1:34:02

Congress wanted to fix that. But to suggest

1:34:04

that in doing so, Congress suggested that the

1:34:06

woman herself isn't an individual, that she doesn't

1:34:08

deserve stabilization. I think that that is an

1:34:11

erroneous reading of this statement. Nobody's suggesting

1:34:13

that a woman is not an individual

1:34:15

when she doesn't deserve

1:34:19

stabilization. Well, I think the premise

1:34:21

of the question would be that the state of

1:34:23

Idaho can declare that she cannot get the stabilizing

1:34:25

treatment even if she's about to die. That is

1:34:27

their theory of distance and this statute, and it's

1:34:29

wrong. Justice

1:34:32

Sotomayor? General,

1:34:35

this lack of

1:34:37

conflict, which your

1:34:42

opposing colleague says doesn't

1:34:45

exist, you mentioned a situation

1:34:47

where it does. Why

1:34:51

don't you succinctly state what you say, what

1:34:53

they admit their stay light, tell

1:34:56

us exactly how you define

1:34:59

where the day light exists?

1:35:02

The daylight, as I see it, exists on

1:35:04

two dimensions. They think that doctors can

1:35:06

only provide stabilizing care when the woman is

1:35:08

facing death. And we think, no, you can

1:35:10

take into account things like kidney failure, the

1:35:13

risk of a seizure, and lifelong neurological

1:35:15

impacts based on that. They said the

1:35:17

recent decision of the Oregon

1:35:20

court says

1:35:22

you don't need death to be eminent

1:35:24

or immediate, I think is the

1:35:26

word they use to find that. So

1:35:29

what the Idaho Supreme Court said in

1:35:31

that decision is that there's no particular

1:35:33

level of imminency and no certain percent

1:35:35

chance requirement, but what the court couldn't

1:35:37

do is turn away from the language

1:35:39

requiring the type of harm to exclusively

1:35:41

be death and also the inherent concept

1:35:43

of necessity requiring some degree of eminence.

1:35:45

It's true that it's a subjective standard

1:35:47

under Idaho law, and the court made

1:35:50

that clear. But what the Idaho Supreme

1:35:52

Court also said is prosecutors are free

1:35:54

to come in and have other medical

1:35:56

experts second-guess doctors' decisions by saying, maybe

1:35:58

you didn't subjectively needed it as

1:36:00

necessary to prevent death because look, her sack

1:36:03

had ruptured but she wasn't yet infected. And

1:36:05

that's exactly the kind of situation that leads

1:36:07

to women being driven out of state, dumped

1:36:10

on neighboring states by Idaho, and

1:36:12

criminalizing the essential care that they

1:36:14

need. Thank you. Justice

1:36:16

Kagan. Yeah, if you could just talk

1:36:19

a little bit about that because as

1:36:21

I understood it, for example, I read

1:36:23

recently that the hospital that has the

1:36:25

greatest emergency room services in Idaho has

1:36:28

just in the few months that this has

1:36:31

been in place had to

1:36:33

airlift six pregnant women to neighboring

1:36:35

states, whereas in the prior year

1:36:38

they did one, the entire year. So

1:36:42

if Mr. Turner is right about what the

1:36:45

state is trying to convey to hospitals about

1:36:47

when they'll be prosecuted, why

1:36:49

is this happening? I think

1:36:52

that the reason this is happening is because

1:36:54

those doctors can look at the text of

1:36:56

the statute itself, they can look at the

1:36:58

Idaho Supreme Court's decision, which made clear, very

1:37:00

clear that this was a departure from prior

1:37:03

Idaho laws that tracked EMTALA, and

1:37:05

they can recognize that their livelihood is on

1:37:07

the line, their medical license, their ability to

1:37:09

practice medicine, their freedom if they have to

1:37:12

go to jail and serve one of these

1:37:14

minimum two-year sentences of imprisonment, and they simply

1:37:16

cannot provide the care, even

1:37:18

consistent with their subjective medical judgment because

1:37:20

as a matter of medical reality for

1:37:22

many of these conditions, it's not yet putting a

1:37:25

woman at the brink of death or necessary to

1:37:27

prevent her death, yet they know that the standard

1:37:29

of care is to provide her with termination because

1:37:31

she is just going to get worse and worse

1:37:33

and worse if they wait it out. And the

1:37:36

other important point about this, and I think it

1:37:38

goes back to this dual stabilization idea, is

1:37:40

that tragically in many of these cases,

1:37:42

the pregnancy is lost. There's not going to be any

1:37:44

way to save that fetus because a woman who has

1:37:46

PPROM at 17 weeks, there is no

1:37:49

medical way to sustain the pregnancy to give the

1:37:52

fetus a chance. So in that situation, what Idaho

1:37:54

is doing is waiting for women to wait and

1:37:56

deteriorate and suffer the lifelong health

1:37:58

consequences with no possible upside

1:38:01

for the fetus. It just stacks tragedy

1:38:03

upon tragedy. And it can't

1:38:05

be the appropriate ... It's become transfer

1:38:07

as the appropriate standard of care in

1:38:09

Idaho, but it can't be the right

1:38:11

standard of care to force somebody onto

1:38:13

a helicopter. And it's entirely inconsistent with

1:38:16

what Congress was trying to do in the

1:38:18

statutes. One of the primary motivators here was

1:38:20

to prevent patients from things. The idea was

1:38:22

we don't want people to have to go

1:38:24

somewhere else to get their care. You go

1:38:26

to the first emergency room in your state

1:38:28

and they have to treat you and stabilize you. But