At the end of the term, the Supreme Court kicked Idaho’s abortion case back down to the Ninth Circuit, but not without two key concessions by the Biden administration. The concessions, while significant, are inconsistent with prior actions by the administration.
The case, in brief, involves the claim by the Biden Department of Justice that Idaho’s pro-life law, which allows abortion only when “necessary to prevent the death of the pregnant woman,” violates the federal Emergency Medical Treatment and Labor Act (EMTALA). EMTALA prohibits Medicare-funded hospitals from dumping patients who can’t pay by requiring the hospitals to stabilize or transfer patients experiencing medical emergencies to prevent “serious jeopardy” to their health.
Both Idaho and the DOJ believe that there is a material gap between when abortion is permitted under Idaho’s law and when abortion is required under the DOJ’s interpretation of EMTALA.
But three Justices disagreed. Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, concluded after oral argument that “Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA’s requirement is narrower than Idaho fears.” In the justices’ view, there was a “dramatic narrowing of the dispute.” And even with an injunction, “Idaho’s ability to enforce its law remains almost entirely intact.”
To support the Court’s decision to lift the stay of the injunction against Idaho’s law, the justices pointed to two key concessions made by the DOJ during oral argument: the Biden administration’s positions on “abortions to address mental health” and “conscience exemptions for healthcare providers.”
Idaho feared that under the DOJ’s interpretation of EMTALA, abortions would be authorized for mental-health reasons.
And rightly so. Abortion for a woman’s “health” is often used as a catch-all, functionally allowing abortion on demand. For instance, in Doe v. Bolton, the companion case to Roe v. Wade, the Supreme Court wrote that in determining whether an abortion was needed to preserve a woman’s health, “all factors — physical, emotional, psychological, familial, and the woman’s age” — related to a woman’s well-being were relevant. Many viewed that decision as essentially allowing abortions post-viability until birth.
During the DOJ’s oral argument, Justice Alito asked the solicitor general point-blank whether the term “health” in EMTALA means just physical health or if it also includes mental health. While acknowledging that health does include mental health, the solicitor general claimed, “EMTALA could never require” abortion as stabilizing care for mental-health conditions because abortion “is not the accepted standard of practice to treat any mental health emergency.”
Of course, nothing is to say that the “accepted standard of practice” can’t change. The Biden administration or a future Democrat administration could easily reverse its position claiming the medical community now says that abortion is the standard of practice to treat mental health emergencies.
As Justices Alito, joined by Justice Thomas, pointed out in his dissent, the Biden administration’s position already “appears to be inconsistent” with certain medical associations, including the American Psychiatric Association and the American Psychological Association, that “endorse abortion for mental-health reasons as an accepted standard of practice.”
The position also appears to be inconsistent with other actions taken by the Biden administration.
For example, earlier this year, the Biden Department of Veterans Affairs issued a final rule providing abortion benefits to veterans and certain beneficiaries. The rule contemplates that abortions could be provided for mental-health reasons “consistent with established standards of care.”
Ignoring a law that prohibits the VA from providing abortion benefits, the VA claimed its rule falls under the VA’s authority to provide medical services that are “needed” and “medically necessary and appropriate.”
Under the rule, “both physical and mental health are included in the meaning of the term ‘health.’” The VA elaborated on the mental-health issues some pregnant women experience and the alleged mental-health consequences of carrying certain pregnancies to term. According to the VA, these mental health conditions could “render an abortion needed to preserve the health of a veteran.”
The DOJ is well aware of the VA’s rule and position on mental health. The DOJ’s Office for Legal Counsel issued an opinion rubberstamping the rule as “a lawful exercise of VA’s authority.” The DOJ also defended against a lawsuit challenging the rule brought by a VA nurse who did not want to be forced to perform abortions in violation of her religious beliefs and conscience rights.
Regarding the DOJ’s second concession, federal conscience laws protect both hospitals and doctors who do not want to perform abortions allegedly required by EMTALA. According to the solicitor general, “EMTALA does not override either set of conscience protections.”
While this concession is meaningful in theory, in practice, hospitals and doctors must rely on the Department of Health and Human Services (HHS) to enforce their conscience rights. And the Biden HHS’s track record on safeguarding conscience rights is abysmal.
This concession mirrors a similar acknowledgment the solicitor general made to the Court a few weeks earlier in the FDA abortion drug case — “federal conscience protections provide broad coverage” and “under federal law, no doctors can be forced against their consciences to perform or assist in an abortion.”
As I wrote shortly after oral argument in that case, the Biden administration’s reliance on conscience protections “appears to be an attempt to provide the justices with a way to kick the case on standing and avoid ruling on the merits.” A gambit that worked.
Similarly, here, the DOJ is playing the long game. As NRO senior writer Dan McLaughlin observed, “The Biden administration’s concessions are obviously just to get through the case.”
When push comes to shove, the Biden administration is willing to speak out of both sides of its mouth if that means it can continue to pursue its pro-abortion agenda and novel interpretation of EMTALA.
Let’s hope the Ninth Circuit sees through the Biden administration’s façade.