By Gavin Oxley, CCS National Lead Investigator
A case reached the Supreme Court as the first challenge to states’ limiting abortion access since Roe vs. Wade was reversed.
In Moyle v. United States, the Supreme Court was charged with deciding if Idaho’s near-total abortion ban conflicted with the medical emergency requirements under The Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires Medicaid-funded hospitals to provide lifesaving care to any patients who arrive at their emergency departments with life-threatening conditions, regardless of their ability to pay. This is not an abortion-specific regulation, but a general life-saving safeguard put in place by the federal government to ensure hospitals are not turning away patients based on their ability to pay. However, abortion advocates are using this common-sense, life-saving regulation to expand abortion access, even though a woman in a life-threatening situation can acquire an abortion in Idaho legally.
It is important to note that no reasonable pro-life advocate wants to put women’s lives at risk and exceptions are carved out in total abortion bans for this reason. Both pro-abortion and pro-life advocates can agree that no one wants women to die.
In the 6-3 decision, Supreme Court justices dismissed Moyle v. United States, meaning the lower court’s decision that Idaho cannot restrict abortion in their state because of EMTALA. Justice Elena Kagan’s majority opinion mainly focused on justifying this decision based on the word “health.”
The definition of “life” and “health” of the mother has been a common point of contention between pro-life and pro-abortion advocates for decades. A broad definition of “health” was established under Doe v. Bolton, the companion decision to Roe v. Wade in 1972. Although Roe was overturned by the Dobbs v. Jackson decision in June of 2022, Doe was not. The federal definition of “health” established by Doe includes “physical, emotional, psychological, familial, and the woman’s age.”
The federal definition of “health” differs from the “life” of the mother. When “health of the mother” is used in constructing, interpreting, and enforcing abortion regulations, there is virtually no reason a physician cannot use it to justify the “necessity” of an abortion. And pro-abortion advocates have openly touted finding physicians who will “say your health is at risk” even if it is not in order to obtain an abortion when it is otherwise unavailable.
A “life of the mother” approach to the interpretation of EMTALA, such as Justice Samuel Alito takes in his dissenting opinion, would require physicians to intervene in medical emergencies that would result in women’s deaths. It is obvious that pregnant women need life-saving intervention in a variety of circumstances – ectopic pregnancy, incomplete miscarriage, preeclampsia, and other diagnoses determined by a medical professional. And no pro-life advocate in good conscience would say otherwise.
However, Justice Kagan asserts abortion – broadly – is a necessary medical treatment. That is most definitely not the case. If abortions were truly imperative procedures in the practice of obstetrics and gynecology, every OB/GYN would be performing them. In fact, even the most liberal estimates by the abortion-affirming American College of Obstetricians & Gynecologists (ACOG) state only 14 percent of currently-practicing OB/GYN specialists perform abortions.
What was really overlooked from the legal perspective are the enforcement mechanisms surrounding EMTALA. Both pro-abortion and pro-life advocates agree that no one wants women to die. When we look at EMTALA and the framework that rightly leaves the medical experts to determine what constitutes a need for medical intervention to save the mother’s life, there is a large loophole in the law due to Doe’s broad definition of “health”.
First, there is the potential for physicians to misapply the exceptions EMTALA creates by giving power to single physicians to make the call that any procedure is “medically necessary.” This opens the door for doctors in favor of wider access to abortion to misuse their position and state any pregnancy endangers the health of the mother when, in fact, there is no threat at all. In addition, physicians should always be required to act if there is a true medical emergency where a woman will die without proper intervention.
While there are many options to be explored that can potentially minimize the loopholes to enforcement in laws like EMTALA, this highlights the need for organizations such as the Center for Client Safety, which can educate lawmakers on ways to strengthen enforceability while protecting women and their children.