Return to Transcripts main page
Connect the World
SCOTUS Hears Emergency Abortion Case. Aired 10-11a ET
Aired April 24, 2024 - 10:00:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[10:00:00]
(MUSIC PLAYING)
ERICA HILL, CNN ANCHOR AND U.S. CORRESPONDENT (voice-over): This hour in Washington, protests outside the U.S. Supreme Court as arguments are set to
begin this hour in one of the most critical cases before the Supreme Court since Roe v. Wade was overturned.
Welcome back to CONNECT THE WORLD. I'm Erica Hill in New York, in today for my colleague, Becky Anderson.
We are beginning this hour with breaking news as we continue to follow the situation outside the court. We're waiting for arguments to begin inside.
Reproductive rights, once again, in the hands of the U.S. Supreme Court.
The justices are set to hear arguments this hour, which could potentially have far-reaching consequences for millions of women and for emergency
rooms and staff across America.
Health care providers watching this very closely; tensions high in front of the court ahead of these arguments. You see some video here, activists on
both sides of this, both anti-abortion and abortion rights activists, shouting in one another's faces at times. There have not been any major
physical altercations reported.
The court is considering whether hospitals have an obligation under federal law to provide emergency abortions if it is seen as a stabilizing care for
women who are suffering from a medical emergency.
So why is this coming up now?
Well, it stems from a lawsuit that was filed by the Biden administration against the State of Idaho, which has a near total abortion ban. CNN
Justice correspondent Jessica Schneider is live in Washington with more of these details for us.
So this suit was filed. Now we find ourselves here at the Supreme Court.
What is the Supreme Court deciding today?
Or they're not deciding today; let me correct myself.
What will the hearing today in terms of these arguments?
JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, they're really deciding whether the federal law preempts this state law that bans most abortions.
And this is really the Supreme Court wading back into this abortion issue two years after they overturned Roe v. Wade.
We've seen the ramifications across the country. So the arguments are about the federal law and then the state law that the Biden administration argues
conflict. The federal government here says, look the federal law should preempt this Idaho law.
What the Idaho law is, it's a near-total ban on abortions. It's currently in effect. It makes it a felony to perform or assist in an abortion. The
only exceptions are if a woman's life is in danger or if the woman is a victim of rape or incest.
So the Biden administration is saying, Idaho, your law conflicts with a federal law. It's known as EMTALA. It was enacted in the 1980s. And what it
does, it requires emergency room doctors to step in and to offer some stabilizing treatment when a woman's health is in danger.
So even if her injury isn't life threatening, per se, this law says the doctor should offer all necessary treatment. And the federal government is
saying that includes abortions.
Idaho has come back, saying, wait a minute, there's nothing in this federal law that says anything specifically about abortion. And this law was really
only enacted with the intent that emergency doctors would have to treat patients, regardless of whether or not they're able to pay.
So in these arguments, that should start any minute now, we will likely hear a lot of talk, maybe boring talk, about the text of this federal
statute; you know, the intent of Congress when they passed this law.
But the ramifications, when the Supreme Court eventually decides this, likely sometime in June, it could be widespread because there're just about
two dozen states that severely now restrict abortion two years after Roe v. Wade was overturned.
And if the court were to side with the Biden administration, which is probably unlikely, given the conservative makeup of this court, it really
could essentially overturn many of these states' abortion bans in the context of emergency room care.
So Erica, there's a lot on the line here because this doesn't only affect Idaho; this could really be widespread in limiting the type of abortion
bans that we have seen pop up all over the country in the two years since Roe v. Wade was overturned.
It's a bit technical on this issue of whether federal law preempts, overrides state law but it does come down to whether emergency room
doctors, when women present to them with not necessarily life threatening injuries but severe injuries nonetheless, whether they can take all the
medical necessary steps, including abortion.
HILL: It's about whether these doctors are essentially going to be allowed to do their job, if that's what they deem is perhaps the best course of
action and discuss it with their patient. We're watching it very, very closely. Jessica, appreciate it.
As we mentioned, off the top of this hour here, lots of people outside the Supreme Court. You see the live pictures there. My colleague, Gabe Cohen,
also there.
What have you seen so smart -- so far this morning?
[10:05:03]
Such passion on both sides here.
UNIDENTIFIED MALE: We say everybody come on in this House.
GABE COHEN, CNN CORRESPONDENT: Yes, Erica, and it's getting harder to hear you in the studio, because the crowd has been growing and the program
getting underway here outside the Supreme Court.
These are abortion rights activists, who have gathered here across the barricades from where we're standing. I don't know if you'll be able to see
it. But there are a group of anti-abortion activists as well who have gathered.
So there are these dueling programs happening right now, a pretty large crowd as it gets underway. But look, we have already seen a pretty tense
clash between the two sides. A couple of anti-abortion activists came over to this side. They were chanting, they were yelling.
And they were immediately surrounded by organizers from these various reproductive rights groups who are here today, who tried to block them from
being seen by cameras, who were trying to drown them out with their own chants. And then yelling at them.
And there was yelling back and forth. A lot of tension. And so it'll be interesting to see how that tension carries over, over the next couple of
hours, as this really gets underway. We will see and we'll keep you updated, Erica.
HILL: All right. Gabe, appreciate it. Thank you.
Also, with me this hour, CNN legal analyst and former federal prosecutor, Jennifer Rodgers.
Jen, great to have you with us.
So as we as we wait for these hearings to begin, what's interesting is that the Supreme Court is taking this up now, right?
So they paused a lower court ruling that basically blocked this happening in Idaho. The fact that they're taking this up now before it has finished
essentially being judged on the merits in those lower courts, what does that tell you?
Why is that important?
JENNIFER RODGERS, CNN LEGAL ANALYST: Well, Erica, I mean, this so-called shadow docket of the court taking on its emergency applications dockets,
the cases.
In the past, they would just wait for the lower courts to fully decide and then take up on their merits, suggests that the court doesn't feel like it
needs to wait for a full vetting of the facts and for all the lower court judges to weigh in on their interpretations.
They feel like they can rule on these things now and it suggests to me that they are likely to continue their restricting of the ways that women can
get reproductive health care in this country.
I don't know exactly what the reasoning will be or what the vote will be. But the fact that they're doing this on the emergency applications docket,
not waiting for the merits, suggests to me that they are likely to side, at least in large part, with the State of Idaho here.
HILL: Jen, stay with us. These hearings -- these arguments just getting underway right now. We're going to listen to Joshua Turner, who is Idaho's
chief of constitutional litigation and policy, who, of course, is arguing in defense of the state's ban.
JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: Normally when we have a preemption case, there's some relationship between the parties. Is the
state being regulated by the federal government under EMTALA or is the state engaged in some sort of quasi contractual relationship?
JOSHUA TURNER, CHIEF OF CONSTITUTIONAL LITIGATION AND POLICY, IDAHO ATTORNEY GENERAL'S OFFICE: Yes, Your Honor, in this case, the state,
Idaho, for example, has no state hospitals that participate with the emergency rooms in EMTALA.
And so in this case, there isn't even a quasi relationship. The parties being regulated by EMTALA here are hospitals and doctors. And I think your
question is getting at the Armstrong issue.
And we think that is a significant question. It wasn't part of the question presented. We think the Indiana amicus brief raises significant questions
and deals with that argument well. But the question presented here is one of direct conflict between Idaho's law and EMTALA. And on that question, we
don't think it's hard at all.
And, Your Honors, going to that direct conflict, I think if you consider the express limitation within the statute of availability.
JUSTICE KETANJI BROWN JACKSON, U.S. SUPREME COURT: Well, before we do that, can I just, can I just step back and get your understanding of the
statute. You made some representations as to how you see it working. And so let me tell you what I think and then you can tell me whether you agree,
disagree or otherwise.
So I think that there are two things that are plain, pretty plain on the face of this statute. One is that EMTALA is about the provision of
stabilizing care for people who are experiencing emergency medical conditions. That's one thing I think the statute is doing.
And I also think that it is operating to displace the prerogatives of hospitals or states or whomever with respect to that fairly narrow slice of
the healthcare universe. This idea of emergency medical services is like one very minor part or small part of, of the sort of overall provision of
healthcare.
So what that means is that when a hospital wants to only provide stabilizing care in emergencies for people who can pay for it, for example,
EMTALA says, no, I'm sorry, you have to stabilize anyone who's experiencing an emergency medical condition.
[10:10:03]
Or when a hospital wants to provide stabilizing treatments to people who are experiencing only certain kinds of emergency conditions, EMTALA says,
no, here's the list of conditions and you have to provide stabilizing care for those people.
Similarly, if a state says, look, it's our job to govern all of health care in our state. And we say that only certain kinds of health care can be
given to people who are experiencing emergency medical conditions. We don't want whatever treatment. We want only certain kinds of treatment.
EMTALA says, no, we are directing that, as a matter of federal law, when someone presents with an emergency condition, they have to be assessed and
the hospital must do whatever is in its capacity to stabilize them.
Is that your understanding of the statute?
TURNER: Partially, Your Honor. We agree that EMTALA does impose a federal stabilization requirement. But the question here is what is the content of
that stabilization requirement. And for that, you have to reference state law.
JACKSON: OK. Well, --
JUSTICE ELENA KAGAN, U.S. SUPREME COURT: I think what you just said is important because the when you concede that EMTALA imposes a stabilization
requirement, it is this statute, the federal government interfering, if you will, in a state's healthcare choices.
So EMTALA is on its face a statute that says it's not all the state's way. There are federal requirements here. There is a requirement to stabilize
emergency patients. And you agree with that?
TURNER: Yes. Justice Kagan, we agree that EMTALA's purpose was narrow to bridge this gap that existed in some cases.
KAGAN: OK. So I mean, we can just take off the table this idea that, you know, just because it's a state and it's healthcare, that the federal
government has nothing to say about it. The federal government has plenty to say about it in this statute.
Now you're right. Now there's a question of what's the content of this stabilization requirement. And as far as I understood your opening remarks,
you say, well, you this is left to the states.
But if I'm just looking at the statute, the statute tells you what the content of the stabilization requirement is. It's to provide such medical
treatment as may be necessary to assure within reasonable probability that no material deterioration of the condition is likely to occur if the person
were transferred or didn't get care.
So it tells you very clearly, it's an object of standard. It's basically -- you know, it's a standard that clearly has reference to accepted medical
practice, not just whatever one doctor happens to think. But it's here --
(AUDIO GAP)
HILL: I think we may have --
Jennifer, I'm going to bring you in here. We may have lost that audio feed for just a moment.
But let's, if we could, just go through what we're hearing. So we just heard from -- I believe it was Justice Ketanji Brown Jackson first and then
Justice Kagan. They're questioning Josh Turner.
And what they're trying to get at here is -- and you will -- you will do much better at decoding the legalese than I would, as the lawyer here -- is
basically what it means to provide that stabilizing care.
RODGERS: Yes, Erica, you got it. These are both very, very good questioners. And what they're doing is they're boxing the State of Idaho in
there, getting the state's representative to agree that, in fact, the federal law does preempt the state law here with respect to a health care
issue.
So it's not the case that states have complete freedom to do whatever they want in the healthcare space. So they basically got him to agree to that.
And then Justice Kagan starts talking about the content of the law, saying it's actually not at all unclear what the law says stabilizing care means.
In fact, right in the statute itself, it talks about what stabilizing care means.
It's an objective standard. It has a definition attached. So they're taking him down the path of where he wants to say, well, you have to look to Idaho
state law to figure out what stabilizing care means.
They're saying no, you don't. You look at the law itself, EMTALA. It tells you what stabilizing care is. And it is a preempting force here. And so you
have to go with that.
Well, of course, here, other justices, likely the more conservative justices, tried to push a different way to view this case. But this is
where Justice Jackson and Justice Kagan are going. And so far, it seems very compelling.
HILL: Yes, it does. All right. Let's continue to listen in. I think we do have that feed, that audio feed, back up.
JACKSON: -- absolutely can't do that. I mean, that's the sort of the initial point that I was trying to make, which is that federal mandate is
to provide stabilizing care for emergency conditions, regardless of any other directive that the state has or the hospital has that would prevent
that care from being provided.
[10:15:00]
That's the work of the statute.
TURNER: Justice Jackson, that's not even HHS' conclusion. In it, the state operations manual, which they proffered on page 36 of the brief, it defines
what makes a staff person available under the statute. And they say it has to --
JACKSON: And does it say that they're not available if state law doesn't allow this procedure?
TURNER: It says they are available to the extent they are operating within the scope of their medical license. And that is our argument. They want to
now draw it far more narrow and look only at physical availability.
We agree that's the component but there's also a legal availability component here, too.
JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: Counsel, the problem we're having right now is that you're sort of putting preemption on its head. The
whole purpose of preemption is to say that if the state passes a law that violates federal law, the state law is no longer effective.
So there is no state licensing law that would permit you, permit the state to say, don't treat diabetics with insulin. Treat them only with pills,
metformin. And a doctor looks at a juvenile diabetic and says, without insulin, they're going to get seriously I'll.
And the likelihood and I don't know what that means under Idaho law, we'll get to that shortly, because I don't know, we believe this is a better
treatment.
Federal law would say, you can't do that. Medically accepted, objective medically accepted standards of care require the treatment of diabetics
with insulin.
The medically accepted obligation of doctors when they have women with certain conditions that may not result in death but more than likely will
result in very serious medical conditions, including blindness for some, for others the loss of organs, for some, chronic blood strokes.
Idaho is saying, unless the doctor can say in good faith that this person's death is likely as opposed to serious illness, they can't perform the
abortion.
So I don't know your argument about state licensing law because this is what this law does. It tells states, your licensing laws can't take out
objective medical conditions that could save a person from serious injury or death.
TURNER: Yes. I think there are two crucial responses to your point. Let me begin with the preemption point. Subdivision F and Section 1395 actually
are telling HHS the federal government and courts just the opposite, that you don't --
SOTOMAYOR: No, it's saying you can't preempt unless there's a direct conflict. If objective medical care requires you to treat women who present
the potential of serious medical complications and the abortion is the only thing that can prevent that, you have to do it.
Idaho law says the doctor has to determine not that there's merely a serious medical condition but that the person will die. That's a huge
difference, Counsel.
TURNER: Your Honor, we agree that the -- there is daylight between how the administration is reading EMTALA and what Idaho's Defense of Life Act
permits. We agree that there's a controversy here. But what I'm saying is that --
SOTOMAYOR: No, no, no, no, no, there's more than a controversy because what you're saying to us is, if EMTALA doesn't have preemptive force in not
just Idaho, it has a saving condition for abortions when it threatens a woman's life.
TURNER: Well, when the --
SOTOMAYOR: But what you're saying is that no state in the nation -- and there are some right now that don't even have that as an exception to their
anti-abortion laws. What you are saying is that there is no federal law on the book that prohibits any state from saying, even if a woman will die,
you can't perform an abortion.
TURNER: Your Honor, I know of no state that does not include a life-saving exception. But secondly, the government --
SOTOMAYOR: Some have been debating it at least and if I find one -- but your theory of this case leads to that conclusion.
TURNER: I think our point is that EMTALA doesn't address that very --
SOTOMAYOR: Does your theory --
CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Could I -- could I hear your answer?
TURNER: Yes.
In -- the administration's reliance on a standard like best clinical evidence or some national norm.
[10:20:00]
I think that's very fraught because what it really is saying is the text itself doesn't address what stabilizing treatment is required.
You go outside the text to professional standards that are floating out there that might change day to day. And that really boils down to a
question between a conflict between what the ACOG says and what Idaho law says and --
ROBERTS: Thank you. Thank you, Counsel.
JACKSON: Actually, can I just clarify?
Because I'm not sure I understand. You know, sort of looking at this from a broader perspective, it seems to me that EMTALA says you must provide
whatever treatment you have the capacity, meaning staff and facilities, to provide to stabilize patients who are experiencing emergency medical
conditions.
Idaho law seems to say you cannot provide that treatment unless doing so is necessary to prevent a patient's death to the extent the treatment involves
abortion. Why is that not a direct conflict?
You have "you must" in a certain situation, that's what the federal government is saying and "you cannot if it involves abortion" says Idaho.
TURNER: I think the nurse example really highlights the reason why, because a nurse might be available. The nurse may be -- may even think she
knows how to and under the flat must provision in EMTALA, the administration's reading would say call her into action, put her into the
operating room and open the patient up.
JACKSON: Right. And
TURNER: But that is not --
JACKSON: -- and Idaho
KAGAN: Well, that --
JACKSON: -- would say no, that's still a conflict. So fine, let's say the -- let's say the administration's position is that nurse can do it. Are you
suggesting that federal law would not take precedence, would not preempt a state law that says, no, she can't?
TURNER: Well, whether federal law could do that is a different question than whether EMTALA here does do that. And I think the answer is clear that
it doesn't.
I mean, it's like the Gonzales v. Oregon, case where the Controlled Substances Act, you know, this Court noted that that was -- the provisions
there rely upon and -- and assume a medical profession being regulated by state police powers.
That's the same with EMTALA. EMTALA is a four-page statute. Congress didn't attempt to address the standards of care for every conceivable medical
treatment in
KAGAN: It -- it definitely didn't address the standards of care. It did leave that to the medical community. It said, you know, the -- Congress was
not going to address every treatment for every condition but it said you do what is needed to assure non-deterioration.
So I guess the question here is, do you concede that with respect to certain medical conditions, an abortion --
HILL: I'm going to bring Jennifer Rodgers back in here.
As I'm listening to this, the back-and-forth, what I'm hearing is there is this medically accepted standard of care, right, which doctors likely know
a heck of a lot more about than lawmakers, unless that lawmaker also happens to be a physician.
They're going back and forth on, in an instance, where the medically accepted standard of care may be to offer a patient the option for an
abortion, because it would likely stabilize that patient, save the life of the mother, the state law would then trump it.
He's going back and forth basically saying, in this case, that procedure is not allowed in the state. So therefore, it is not a medically accepted
standard of care.
Am I understanding that?
RODGERS: So I think what the Idaho representative is saying -- and Justice -- I think it was Justice Sotomayor's trying to really corner him on that,
saying there have to be.
Do you concede that there are medical situations where abortion is the standard of care that needs to be provided?
And he said no. And I think his argument is, under Idaho law -- and Idaho law, like all states, licenses medical professionals -- he's going to say
that the standard of care has to be referenced in Idaho using Idaho law and the standards that they provide for their physicians, governed by Idaho
law.
So I think that's where the disconnect is happening here. He's trying to push back and say what this means, the medical standard of care, you can't
-- you can't go to the federal statute for that. You have to go to what the states think as they license their own medical professionals, physicians,
nurses, et cetera.
Is the appropriate standard of care. And the justices, at least these justices, Sotomayor Kagan and Jackson, are having none of that.
HILL: Yes. It's interesting, too, as to what that would mean, right, which you and I were talking about earlier, if one state has a different standard
of care, what does that mean across the country, depending on how this court rules.
We're going to take a quick break here.
[10:25:00]
We'll be back with those arguments in just a moment. Stay with us.
(MUSIC PLAYING)
(COMMERCIAL BREAK)
(MUSIC PLAYING)
HILL: The U.S. Supreme Court right now is hearing arguments on whether Idaho's state abortion ban can be enforced in medical emergencies. Want to
take it back inside that courtroom at the Supreme Court. We have the audio feed of these arguments, the questioning being live streamed right now.
Let's take a listen.
TURNER: Yes. And, Your Honor, my point is that --
SOTOMAYOR: If your doctor says, I can't, with a medical certainty, say she's going to die but I do know she's going to bleed to death if we don't
have an abortion but she's not bleeding yet, so I'm not sure.
TURNER: The doctor doesn't need to have medical certainty. The Idaho Supreme Court answered that question --
SOTOMAYOR: Counsel, answer yes or no. He doesn't have -- he doesn't -- cannot say that there's likely death. He can say there is likely to be a
very serious medical condition
TURNER: Yes. Based on --
SOTOMAYOR: -- like a hysterectomy.
TURNER: Based on the --
SOTOMAYOR: Let me go to another one. Imagine a patient who goes to the ER with PPROM 14 weeks. Again, abortion is the excepted. She's up -- she was
in and out of the hospital up to 27 weeks. This particular patient, they tried -- had to deliver her baby. The baby died. She had a hysterectomy and
she can no longer have children. All right?
You're telling me the doctor there couldn't have done the abortion earlier?
TURNER: Again, it goes back to whether a doctor can in good-faith medical judgment make --
SOTOMAYOR: That's a lot for the doctor to risk when
TURNER: Well, I think it's protective --
SOTOMAYOR: -- when --
TURNER: -- of doctor judgment, Your Honor.
SOTOMAYOR: -- when Idaho law changed to make the issue whether she's going to die or not or whether she's going to have a serious medical condition.
There's a big daylight by your standards, correct?
TURNER: It is very case by case. The examples, the prong --
SOTOMAYOR: That's the problem, isn't it?
BARRETT: Counsel, I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered.
TURNER: Yes.
BARRETT: And you're now saying they're not?
TURNER: No, I'm not saying that. That's just my point, Your Honor, is that
BARRETT: Well, you're hedging. I mean, Justice Sotomayor is asking you would this be covered or not and it was my understanding that the
legislature's witnesses said that these would be covered.
TURNER: Yes and those doctors said, if they were exercising their medical judgment, they could in good faith determine that lifesaving care was
necessary. And that's my point. This is a subjective standard.
BARRETT: But some doctors couldn't, is -- some doctors might reach a contrary conclusion, I think
TURNER: Well
BARRETT: -- is what Justice Sotomayor is asking you. So
TURNER: And -- and let me
BARRETT: -- if they reached -- if they reached the conclusion that the legislature's doctors did, would they be prosecuted under Idaho law?
TURNER: No. No. If they -- if they reached the conclusion that the -- Dr. Reynolds, Dr. White did, that these were lifesaving
BARRETT: What if the prosecutor thought differently?
What if the prosecutor thought, well, I don't think any good-faith doctor could draw that conclusion, I'm going to put on my expert?
TURNER: And that, Your Honor, is the nature of prosecutorial discretion and it may result in a -- a case that require --
[10:30:00]
BARRETT: Does Idaho put out any kind of guidance?
You know, HHS puts out guidance about what's covered by the law and what's not. Does Idaho?
TURNER: There are regulations. DAPA has some regulations. But I think the -- the guiding star here is the Planned Parenthood v. Wasden case, which is
a lengthy, detailed treatment by the Idaho Supreme Court of this law.
And it made clear, the court made clear, that there is no medical certainty requirement. You do not have to wait for the mother to be facing death.
JACKSON: Counsel, I don't
ROBERTS: Thank you, counsel. Is there -- what happens if a dispute arises with respect to whether or not the doctor was within the confines of Idaho
law or wasn't?
Is the doctor subjected to review by a medical authority?
Exactly how is that evaluated?
Because it's an obvious concern. If -- if -- if you have an individual exception for a doctor and we're having a debate about is that covered by
your submission that nothing in Idaho law prohibits complying with EMTALA, I mean, who -- who makes the decision whether or not something's within or
without?
TURNER: So I mean, I -- I imagine there are two ways the law can be enforced or at least two. The Board of Medicine has licensing oversight
over a doctor.
And the Idaho Supreme Court made clear that that doctor's medical judgment is not going to be judged based on an objective standard, what a reasonable
doctor would do. That's not the standard. The second way would be if a --
ROBERTS: Well, what -- what is the standard?
TURNER: The doctor's good-faith medical judgment, which is subjective.
ROBERTS: And it's not subject to review by any medical board if there's a complaint against the doctor that
TURNER: Yes.
ROBERTS: -- his standards don't comply?
Let's say he's the only doctor at the particular emergency room and he has his own particular standard.
TURNER: What -- what the Idaho Supreme Court has said is that you may consider another doctor's opinion only on the question of was it a
pretextual medical judgment, not a good-faith one.
ROBERTS: Thank you.
Thomas?
Alito?
ALITO: Well, I would think that the concept of good-faith medical judgment must take into account some objective standards but it would leave a
certain amount of leeway for an individual doctor. That was how I interpreted what the -- what the state supreme court said.
Now you have been presented here today with very quick summaries of cases and asked to provide a snap judgment about what would be appropriate in
those particular cases and, honestly, I think you've hardly been given an opportunity to answer some of the hypotheticals.
But would you agree with me that, if a medical doctor, who is an expert in this field, were asked, bang, bang, bang, what would you do in these
particular circumstances, which I am now going to enumerate, the doctor would say, wait, I don't -- this is not how I practice medicine. I need to
know a lot more about the individual case.
Would you agree with that?
TURNER: Absolutely. And ACOG has, you know, in the case of PROM, for example, ACOG doesn't just knee-jerk stay an abortion is the standard of
care. ACOG itself says that expectant management is oftentimes the appropriate standard of care.
And so these are difficult questions that turn on the facts that are on the ground between the doctor as he is assessing them with his medical judgment
that he's bringing to bear but is also necessarily constrained by Idaho law. Just like every other area of the practice of medicine, state law
confines doctor judgment in some ways.
ALITO: Thank you.
ROBERTS: Justice Sotomayor?
SOTOMAYOR: There is a difference between stabilizing a person who presents a serious medical condition requiring stabilization than a person who
presents with a condition, quoting Idaho's words, where there is a -- poses a great risk of death to the pregnant woman. You agree there's daylight
between the two?
TURNER: We agree and I think this is most --
SOTOMAYOR: And so there will be some women who present serious medical condition that the federal law would require to be treated who will not be
treated under Idaho law?
TURNER: No, I disagree with that. Idaho hospitals are treating these women. They're not treating these women with --
SOTOMAYOR: Stop.
TURNER: -- abortions necessarily, Your Honor and that's an important point.
SOTOMAYOR: And that's my point. Just answer the point, which is they will present with a serious medical condition that doctors in good faith can't
say will present death but will present potential loss of life. Those doctors -- potential loss of an organ.
[10:35:00]
Or serious medical complications for the woman. They can't perform those abortions?
TURNER: Yes. Your Honor, if that hypothetical exists and I don't know of a -- a condition that is so certain to result in the loss of an organ but
also so certain not to transpire with death. If that condition exists, yes, Idaho law does say that abortions in that case aren't allowed. And I think
--
SOTOMAYOR: All right. That -- let me stop you there because all of your legal theories rely on us holding that federal law doesn't require --
cannot preempt state law on these issues.
And so, when I asked you the question if a state defines likelihood of death more stringently than Idaho does, you would say there's no federal
law that would prohibit them from doing that?
TURNER: Well, I would say that EMTALA does not contain a standard of --
SOTOMAYOR: So there is no -- no standard of care. In your briefing, you make the SG's position here and you almost argue that now, that -- that
their position that federal law requires stabilizing treatment and not equal treatment of patients, which was a position you took in your brief.
You seem to have backed off from it here, you seem to agree that federal law requires some stabilizing condition, whether or not you provide it to
other patients. But I have countless briefs that say that both -- that HHS has filed -- that pre-Dobbs, pre-2009.
This is not an unprecedented position, that HHS in countless situations cited hospitals for discharging patients who required an abortion as a
stabilizing treatment.
Congress discussed that topic in the Affordable Care Act and explicitly said that nothing in the Affordable Care Act shall be construed to relieve
any healthcare provider from providing emergency services as required by state or federal law.
Medical providers have told us that for decades they have understood both federal law and state law to require abortions as stabilizing conditions
for people presenting serious medical risk.
Lower courts, there's at least cases of lower courts saying you have to provide abortion. So this is not a post-Dobbs unprecedented position by the
government.
TURNER: It absolutely is. The -- in footnote 2, the administration cites to two spreadsheets that contain 115,000 rows of enforcement instances. The
administration --
SOTOMAYOR: Counsel --
TURNER: -- has not identified a single instance --
SOTOMAYOR: -- Counsel, pre-Dobbs, this wasn't much of a question. But there is HHS guidance and there's at least three cases in which it was
invoked. The fact that we didn't have to -- that HHS didn't have to do it much before pre-Dobbs doesn't make their position --
TURNER: My point is more --
SOTOMAYOR: -- unprecedented.
TURNER: My point is more fundamental, Your Honor. It's not just that there are few instances. There are no instances. And not just on the issue of
abortion. --
(CROSSTALK)
HILL: -- correspondent Meg Tirrell here.
Meg, I know you've been listening in to these arguments as well to the questioning we're hearing from the justices, the answers we're getting from
Josh Turner.
A lot of this is centered in this moment in this question, basically on how much leeway doctors have in terms of determining that standard of care,
what could perhaps save someone's life or if someone is in a threatening, very serious medical condition, right.
Perhaps prevent further issue with them. We have already seen the real- world implications, even just in the State of Idaho, from this law, which bans abortion in most cases, except to save the life of the mother and in
rape and incest but only if they have been reported to police.
We have seen the impact on the medical community in that state already.
MEG TIRRELL, CNN MEDICAL CORRESPONDENT: Yes, absolutely. I mean, we have been to Idaho and we've talked with doctors. We've talked with people
who've been pregnant who've had to leave the state in order to get medically necessary abortions. They were told by their doctors that was the
standard of care.
But they couldn't get that in Idaho. And in these questions that we're hearing about right now is, when is something life threatening and when is
something simply health threatening but not immediately life-threatening?
These are very complicated situations. Some of the examples we have heard given from doctors and that are cited in the Department of Justice's brief
in this case include when a pregnant person's water breaks too early, for example.
But you're previability, so you're before 22 weeks of pregnancy. And, unfortunately, that baby will not survive. That can be an emergency
situation.
Also preeclampsia, it's extremely life threatening, severe high blood pressure. These are some situations that are cited that are not perhaps
immediately life-threatening but that threaten the health of the pregnant person.
[10:40:03]
And what we have heard from the largest hospital system in Idaho, St. Luke's, which filed a friend of the court brief in this case as well, is
that physicians are, instead of trying to make these decisions which could threaten their medical license, threaten putting them in jail for two to
five years, they are transferring patients out of state to receive that care.
We heard from St. Luke's that before this EMTALA ban was lifted in Idaho. So when there was this EMTALA exception, they transferred one patient out
of state in all of 2023. Since the ban essentially was enabled to go into effect completely. So this sort of stay, in this case was put into effect
just a few months ago this year.
They've seen six patients transferred out of Idaho to receive care and they say annualized, that would be 20 patients. So these are small numbers. But
they're not non-existent. That's a 20-times, twentyfold increase in terms of patients having to make and physicians having to make these horrible
decisions.
They are not comfortable with these, either. And that's why we're hearing about a lot of doctors leaving Idaho, are choosing not to practice in Idaho
because they say this makes their jobs just too difficult.
HILL: Yes, essentially, one in four OB-GYNs, who's now either left the state or retired. Meg, really appreciate the context. It is so important.
Stay with us. We're going to take a quick break here. We'll resume listening to those arguments on the other side.
(MUSIC PLAYING)
(COMMERCIAL BREAK)
(MUSIC PLAYING)
HILL: Welcome back. We're going to take you back inside the Supreme Court, where the justices are hearing arguments about whether Idaho's abortion ban
can be enforced in medical emergencies.
[10:45:04]
Let's listen in.
TURNER: -- of unborn children.
ROBERTS: Justice Kavanaugh?
KAVANAUGH: I just want to focus on the actual dispute as it exists now, today, between the government's view of EMTALA and Idaho law, because Idaho
law has changed since the time of the district court's injunction both with the Idaho Supreme Court and with a clarifying change by the Idaho
legislature.
You say in your reply brief and so too the -- the Moyle reply brief says, that for each of the conditions identified by the Solicitor General where,
under their view of EMTALA, an abortion must be available, you say in the reply brief that Idaho law, in fact, allows an abortion in each of those
circumstances.
And you go through them on pages 8 and 9 of the reply brief, each of the conditions.
Is there any condition that you're aware of where the Solicitor General says EMTALA requires that an abortion be available in an emergency
circumstance where Idaho law, as currently stated, does not?
TURNER: So certainly, the administration maintains that there is such conditions. The ones they identify in the affidavits
KAVANAUGH: What is your -- what is your view?
TURNER: And my view is that yes -- and I'm going to reference Footnote 5 from the gray brief -- the mental health condition situation. The
administration says that's not on the table. That's not a scenario where abortion is the only stabilizing care required.
And I'm not sure where that construct of only stabilizing care comes from because, under their view, it's the doctor's determination that controls,
not this imposed only requirement.
But be that as it may, the American Psychiatric Association -- and so I'm taking General Prelogar up on her offer in Footnote 5 that there are no
professional organizations that set abortion as a standard of care.
The American Psychiatric Association, in a 2023 position paper, says that abortions are imperative for mental health conditions. That sounds like a
necessity to me. And I don't know how, if a woman presents at seven months pregnant in an Idaho emergency room and says, I'm experiencing severe
depression from this pregnancy.
I'm having suicidal ideation from carrying this pregnancy forth, that that wouldn't, under the administration's reading, be the only stabilizing care.
KAVANAUGH: So you think the Ninth Circuit panel, when it said every circumstance described by the administration's declarations involved life-
threatening circumstances under which Idaho law would allow an abortion, is what the Ninth Circuit panel said?
TURNER: We agree with that because the conditions identified in the affidavits were all conditions that would fit under the lifesaving
exception and that's telling because, you know, these doctors, when put under oath in an affidavit, couldn't come up with any of these harrowing
circumstances.
They identified other ones. But I think what the government doesn't want to talk about, again, is the mental health exception here. That is -- I just
don't know how you can read their understanding of
KAVANAUGH: Well, I'm just trying to figure out is there really a -- other than the mental health, which we haven't had a lot of briefing about, is
there any other condition identified by the Solicitor General where you think Idaho law would not allow a physician in his or her good-faith
judgment to perform an emergency abortion?
TURNER: Not in their affidavits. They maintain nonetheless that when you compare the definition of what an emergency medical condition is, it is
broader than the definition of the lifesaving exception in Idaho law. And so they present this
KAVANAUGH: Well, that's what they -- they say but then, when we get down to the actual conditions that are listed, the examples -- and Justice
Sotomayor was going through some of those -- you have said in your brief at least that each of the conditions identified by the government, actually,
Idaho law allows an emergency abortion.
TURNER: And I agree and I think the injunction here is also
KAVANAUGH: Well, what's -- what does that mean for what we're deciding here?
TURNER: Well, what it means for Idaho
KAVANAUGH: If Idaho -- if Idaho law allows an abortion in each of the emergency circumstances that is identified by the government as EMTALA
mandating that it be allowed?
TURNER: I'll say two things. I mean, the real practical first response is that Idaho's under an injunction that includes an incredibly broad
requirement that preempts state law
KAVANAUGH: Right. I -- I understand that. And that may mean that there shouldn't be an injunction. I take your point on that. What's your second?
TURNER: My second point, Your Honor, is I don't know how this Court can make the determination on whether there are any real-world conditions
without first answering the statutory interpretation question of what EMTALA's stabilization requirement actually requires.
That has to be addressed and it has to be addressed not only because that's for the direct
[10:50:00]
KAVANAUGH: Well, I was just picking up on your reply brief. You're the one who said it in your reply brief
TURNER: Yes.
KAVANAUGH: -- that there's actually no -- no real daylight here in terms of the conditions. So I'm just picking up on what you all -- you all said.
TURNER: Yes. I understand, Your Honor.
KAVANAUGH: Thank you.
ROBERTS: Justice Barrett?
BARRETT: I guess I don't really understand why we have to address the stabilizing condition if what you say is that nobody has been able to
identify a conflict.
And on the mental health thing, the SG says -- I just picked it up to check Footnote 5 -- "Idaho badly errs in asserting that construing EMTALA
according to its terms would turn emergency rooms into federal abortion enclaves by allowing pregnancy termination for mental health concerns."
So if that's the only space that you can identify where Idaho would preclude an abortion and EMTALA would require one and the government is
saying no, that's not so, what's the conflict?
TURNER: Well, Your Honor, I mean, of course, we think we win whether you find no factual conflict and, therefore, the injunction had to go away.
BARRETT: But why?
Why are you here?
I mean, you know, the government says -- you say
TURNER: Well, they sued us, Your Honor.
BARRETT: Well, hold on a second. You're here because there's an injunction precluding you from enforcing your law. And if your law can fully operate
because EMTALA doesn't curb Idaho's authority to enforce its law, what's
TURNER: Well, it can't under the injunction because the injunction says that Idaho's law is preempted in an incredibly broad range of circumstances
to avoid
BARRETT: As -- as it conflicts with EMTALA, I thought.
TURNER: It -- it -- it is much broader than that. It -- and this was based on the proffered injunction by the administration to avoid an emergency
medical condition, not in the face of an emergency medical condition.
So what that means is Idaho's law can't even operate when a doctor determines that a condition might need to be avoided that hasn't yet
presented itself.
That's far broader than the emergency medical condition and stabilization requirement under EMTALA because the stabilization requirement under EMTALA
is only triggered when there has been a determination that
BARRETT: OK. Well, I -- I would like to hear the Solicitor General's response to that.
But let me just ask you one other thing about the mental health consideration because I can -- I can understand Idaho's point that a mental
health exception would be far broader than Idaho law and had the potential to expand the availability of abortion far beyond what Idaho law permits.
But the stabilization requirement only exists up until transfer, right, until transfer is possible?
So it's hard for me to see how, with a mental health condition, that couldn't be stabilized before needing to transfer, right?
At that point, the Idaho hospital could say: Well, you're -- you're stable, you're not immediately going to be suicidal, we'll leave you in the
care of, you know, a parent or a partner who will then seek appropriate treatment.
TURNER: Well, that flexible view of stabilization is very different than the government's very rigid view of stabilization, which is, if an
emergency medical condition calls for an abortion, it's got to be provided right there and then if it's available in this very limited sense.
And so the stabilization continuum that you're talking about, I agree, that's built into EMTALA because --
BARRETT: The statute says until transfer is possible.
TURNER: Well, the -- the transfer provision kicks in if a hospital is unable to stabilize a condition.
And so, if a patient presents at a hospital and that hospital has the capability, the availability to stabilize the condition, in the case of
mental health, I invite General Prelogar to come up here and tell you that I've got it all wrong and that, you know, the mother that I described would
not need to receive stabilization in that circumstance.
And instead would be transferred to a psychiatric hospital or something and that wouldn't constitute dumping under their reading. I just don't see how
that comports with everything they've said about the rigid view of stabilization that if a condition calls for it and a hospital can do it,
it's got to be done there and then.
BARRETT: Does Idaho have any kind of conscience exemption for doctors under state law?
TURNER: It does. And there are federal conscience protections as well. And I think that is a key point here, Your Honor. The administration told this
Court in the FDA case that individual doctors are never required to perform an abortion from what I could tell but that doesn't extend to hospitals.
And so, in the case of Catholic hospitals and there are hundreds of them treating millions of patients every year, under the administration's
reading, Catholic hospitals who faithfully adhere to the ethical and religious directives are now required to perform abortions.
BARRETT: Is that because no federal conscience exemption applies?
TURNER: I don't know why they say that's the line that they draw between individual doctors and religious institutions because Coats-Snowe on its
face seems to cover both.
BARRETT: OK. Thank you.
ROBERTS: Justice Jackson?
JACKSON: I'm really surprised to hear you say that Idaho law permits everything that the federal law requires. So I just -- I'm trying to
understand that because it seems to me that if that's the case, then why couldn't emergency room physicians in Idaho just ignore Idaho law and
follow the federal standard?
[10:55:00]
I mean, if -- if -- if the state is doing exactly what the -- what the federal law says is required, if it's OK by Idaho, then, fine, we set Idaho
aside. We do what the federal law says and we all go home.
TURNER: Well, I mean, our reading, of course, is that there is no conflict. And so as doctors aren't having to make this choice of do I
follow EMTALA or do I follow --
JACKSON: So your representation on the -- on behalf of Idaho is that if a -- an emergency room physician in Idaho follows EMTALA in terms of when an
abortion is required to stabilize a patient, they will be complying --
HILL: We've been listening here to these hearings at the Supreme Court. What they're deciding here is the federal government or the Biden
administration had sued over an Idaho state law, which essentially bans abortion in all cases except when it comes to saving the life of a mother.
Or, in certain cases of rape or incest, but only those cases that have actually been reported to the authorities or a police report has been
filed.
You're hearing some pretty fiery questioning, especially from some of the liberal justices being asked of Josh Turner, who's representing the State
of Idaho.
Also, some interesting push from Justice Amy Coney Barrett, who is of course, one of the more conservative justices on that court and did vote to
overturn Roe v. Wade. We're going to continue to follow this for you.
We are also waiting for President Biden to sign that massive international aid package that was passed last night in the U.S. Stay with us. We'll
address both on the other side of this break.
(MUSIC PLAYING)
(COMMERCIAL BREAK)
(MUSIC PLAYING)
(JOINED IN PROGRESS)
JOE BIDEN (D), PRESIDENT OF THE UNITED STATES: -- package that was passed on House representatives this weekend and by the Senate yesterday.
It's going to make America safer. It's going to make the world safer and it continues America's leadership in the world. And everyone knows it.
Gives vital support to America's partners and -- so they can defend themselves against threats to their sovereignty and to the lives and
freedom of their citizens.
And it's an investment in our own security because, when our allies are stronger -- I want to make this point again and again -- when our allies
are stronger, we are stronger I'm grateful for all those in Congress -- Democrats, Republicans, independents -- who voted for this bill. It's a
path to my desk. It was a difficult path.
It should have been easier and should have gotten there sooner. But in the end, we did what America always does. We rose as a moment and came together
and we got it done. Now we need to move fast and we are.
Over two years, Russia has been responsible for a brutal campaign against Ukraine. They've killed tens of thousands of Ukrainians, bombed hospitals,
deliberately picked them out, bombed hospitals, kindergartens, grain silos; tried to plunge Ukraine into a cold and dark winter by striking their power
grid.
Ukrainians have fought. Ukrainians have fought back, defending their country and their families with extraordinary courage. Many of you been
there with me many times. It's amazing what they do. I mean, it's amazing, against such a larger military.
Ukraine has regained over half the territory Russia took from them in its invasion. And they won important victories against Russia's navy.
But make no mistake about, they're a fighting force with the will and the skill to win, the will and the skill to win. For months, while MAGA
Republicans were blocking aid, Ukraine has been running out of artillery shells and ammunition.
Meanwhile, Putin's friends keep giving them -- keeping them well supplied. Iran sent them drones. North Korea has sent ballistic missiles and
artillery shells.
END
