The preemption stakes in Idaho vs. U.S.

A high court decision in favor of Idaho puts at risk the federal government’s ability to set national environmental, labor and consumer protection standards.

by Merrill Goozner

Angry Bear can not add to Merrill’s remarks on Idaho’s stance banning abortion in almost all circumstances and their claims to preempt the federal Emergency Medical Treatment and Active Labor Act. Until it is them who are endangered will we find the rules (which they are) will change. Sad . . .


The U.S. Supreme Court heard oral arguments this morning in the federal government’s suit against Idaho’s “Defense of Life Act,” which bans abortion in almost all circumstances and claims to preempt the federal Emergency Medical Treatment and Active Labor Act. EMTALA, passed in 1986 and signed into law by President Ronald Reagan, requires every hospital accepting Medicare or Medicaid funds (which is virtually every hospital in the U.S.) provide emergency medical treatment to anyone who faces immediate risk of death or severe bodily harm.

The stakes in this case are huge and go well beyond the abortion issue. Should the conservative majority on the high court rule in Idaho’s favor, virtually every federal law regulating the environment, working conditions or consumer product safety could be called into question. Indeed, any law that sets national standards will face legal challenge by states that pass laws (usually on behalf of corporations) that have lower standards or none at all.

I listened in to the live audio feed. I was shocked by medically erroneous statements made by the Idaho solicitor general Joshua Turner in defending his state’s law, which does include an exception for preserving the life (but not the health) of a pregnant woman.

Justice Sonia Sotomayor asked whether the state’s ban would prevent abortion even if the woman faced losing an organ or might never be able to have children should her current, nonviable pregnancy continue. “I don’t know of a condition that leads to a loss of organ but not death,” Turner said. “Idaho law does say that abortions in that case aren’t allowed.”

During her oral arguments, U.S. solicitor general Elizabeth Prelogar countered that a pregnant woman with a medical crisis — due a burst amniotic sac, uterine rupture or severe preeclampsia, for instance — can be at very high risk of death with no hope of fetal viability. Because there is “no other way to stabilize and prevent her from deteriorating, EMTALA’s plain text requires an abortion under those circumstances,” she argued.

“Idaho makes this a crime leading to years in prison.”

Turner repeatedly argued that states, not the federal government, have the right to regulate the practice of medicine. This implies that state legislatures are better positioned than individual doctors, professional societies or other clinical practice guideline-writing organizations, which set the parameters for physician practice now, to establish when a particular medical situation threatens the life or health of the pregnant woman. He said . . .

“Best clinical evidence or a national norm is very fraught. Standards may change from day to day.”

The Idaho solicitor general also claimed, falsely, that “Catholic hospitals will now have to perform abortions.” Prelogar stated definitively that both hospitals and individual doctors have the right to assert conscience objections to providing abortions.

“EMTALA does not override either conscience objections,” she said. “As best practice, hospitals ask doctors to make those objections known in advance” so they can staff with non-objecting physicians. Catholic hospitals have an obligation to have an alternative immediately at hand should a pregnant woman require an abortion to save her life.

Amy Coney Barrett, the anti-abortion justice appointed by Donald Trump to replace Ruth Bader Ginsburg, drew the obvious conclusion from the state’s argument. What if some doctor determined that an abortion was necessary to save the life of the mother at an Idaho hospital, but a county prosecutor made a different determination and charged the attending physician with murder, she asked.

“That will be left to prosecutorial discretion,” Turner said.

There you have it in a nutshell: If the high court rules in Idaho’s favor, state legislatures and county prosecutors will have free rein to control the practice of medicine in the U.S.