The New Abortion Fight Before the Supreme Court

from The New York Times I'm Sabrina. tavernes and this is the. [Music]. daily as the presidential race moves. into high gear abortion is at the center. of it Republican controlled States. continue to impose new banss including. just this week in. Florida but in Washington the Biden. Administration is fighting back. challenging one of those banss.

in a case that is now before the Supreme. Court today my colleagues Pam Bellic and. Abby venicle. [Music]. explain it's Wednesday May. [Music]. 1st so Pam in the two years since roie. Wade was overturned more than a dozen.

states have instituted pretty strict. bans but as all of these Bans are. happening at the state level something. is happening at the federal level and. that is the Biden Administration is. fighting back in a kind of unusual way. and that effort came to the Supreme. Court last week tell me about it yeah so. the case that went before The Supreme. Court last week is basically a fight. between the state of Idaho and the Biden.

Administration over whether Idaho's. abortion ban violates a federal law. that's been on the books for decades and. if it does then does Idaho have to. change its abortion ban and this case. really gets at a bigger question about. whether there are still ways that the. federal government can limit State's. ability to ban or restrict abortion dobs. eliminated the constitutional right to.

abortion right it said that there's no. guarantee anywhere in the country that. people have a right to abortion access. and that states can make their own laws. around abortion but it didn't completely. eliminate any other way that federal. government laws or regulations interact. with abortion right so that left the. Biden. Administration looking around to try to. figure out what if anything the federal.

government could do to weigh in on. abortion and it turned out that there. were really very few tools left to the. federal government but it does find this. one federal law from 40 years ago and. the law really has nothing to do with. abortion it doesn't mention abortion it. is all about emergency room medical care. but the Biden.

Administration thinks that it has found. a way to use this law to fight some of. the strictest abortion bans that states. like Idaho are putting into play. interesting so the Biden Administration. is kind of rumaging around in its back. closet right looking for ways to protect. abortion rights there's nothing really. there but it finds this kind of old. dress this law you're talking about tell. me about this law.

right so this is the emergency medical. treatment and Labor Act as an. abbreviation it's referred to as. mtala and mtala was passed to try to fix. a problem that was getting increasingly. widespread in the country in the. 1980s and what was happening was a. problem called patient. dumping what this meant was that mostly. private hospitals if a patient showed up.

to their emergency room and the patient. didn't have insurance or couldn't. otherwise pay these private hospitals. were closing their doors to these. patients. H and they were sending them to public. hospitals County hospitals and there. were these horrific examples of people. who were showing up in emergency rooms. at public hospitals having been kicked.

out of the private hospital with stab. wounds and gunshot wounds I mean there. was one case in Texas where a man with. third degree burns stumbled into a. county hospital with a catheter and an. IV line that had been inserted by the. Private Hospital that had kicked him out. oh my God and this was creating a lot of. public alarm and getting a lot of. attention and some of the cases involved.

pregnant women in labor and these. private hospitals were turning them away. before their babies could be. born and one example in Texas this woman. went to a private hospital and when she. told them that her husband had just lost. his. job they pushed her legs together. started an IV line and sent her over to. this County hospital and she was.

crowning according to the doctor who was. at the hospital and the baby was just. coming any minute she delivered in the. hallway of the. hospital so this is a serious public. problem yeah and Congress is under. pressure to take action to try to. prevent this and so in 1986 they enact. mtala this federal law which really was. Landmark it was really kind of groundbre.

breaking and basically what this law. does is it says emergency rooms in. hospitals that receive medicare funding. which is almost all hospitals in the. country have to treat any patient that. shows up with any emergency medical. condition it requires emergency rooms to. stabilize the patient they have to give. at least a basic standard of treatment. to make sure that their health doesn't.

get worse that their condition doesn't. deteriorate and if they can't do that. they don't have the ability to do that. they have to transfer the patient to a. hospital that can and it crucially does. not matter if they can't pay for it or. if they have no insurance but where does. abortion come into this we're obviously. talking about this in the context of an. abortion fight right I mean from what. you're saying it sounds like this law. really had to do with you know women who. were coming in trying to deliver babies.

not women who were coming in trying to. have abortions to get rid of babies. exactly I mean abortion is not mentioned. in mtala and it was not really something. that even came up in the passage of the. law the law was really addressing these. horror stories of women in labor being. turned away from hospital emergency. rooms but the law does include this. two-word phrase that decades later. becomes part of the abortion debate and.

that phrase is unborn child now at the. time that phrase shows up very much in. this context that we've been talking. about of women who are about to deliver. a baby so abortion is not mentioned in. this law at all and it wasn't even. really in the background of at the time. when it was passed after mtala has. passed it has been used over the last. four decades.

to basically try to ensure that patients. with all kinds of conditions don't get. turned away from emergency. rooms and it doesn't come into the. abortion debate until nearly four. decades later when the Biden. Administration decides that it can use. this law to try to at least open some. cracks into these very rigid State. abortion banss okay so you brought us. back to the beginning where we started.

this conversation which is this current. case right Idaho versus the Biden. Administration so how did that fight. actually break out yeah so after roie. Wade was overturned a number of States. including Idaho put into place near. total abortion banss Idaho's ban has. very limited exceptions for abortion and. one of the only times abortion is. allowed is to keep a pregnant woman from. dying but the Biden Administration.

issues a memo and it says Hey hospitals. hey States we're just reminding you the. interpretation of mtala applies to women. who come to emergency rooms and need. emergency. abortions so what the Biden. Administration is saying is this federal. law says preventing death is not the. only. reason that emergency rooms have to. treat people they also have to prevent.

People's Health situation from getting. worse because there are many situations. where a woman is bleeding you know. severely or she has a severe infection. but maybe she's not about to die and so. there's a pretty wide Gulf between. situations where a pregnant woman might. need an abortion to save her life and. when she might need an abortion to. protect her health so the Biden. Administration is saying look this.

Federal laww requires that you protect. not just the woman's life but also the. Woman's Health which of course brings it. into direct conflict with Idaho's ban. right exactly and what the Biden. Administration is going after here is. something much broader something that. goes beyond emergency room Care What. They're targeting here is the concept in. Idaho's ban that you can't intervene. except to save the life of the mother.

and by pointing to mtala and saying this. Law requires you to intervene to protect. a patient's Health they want to force. states with these strict bans to. acknowledge and allow abortions in a. number of these cases of pregnancy. complications that happen and by doing. that it really wants to also create a. crack in the foundation of these. abortion B.

got it so that's the crack in the. foundation that you're talking about. it's not just about this narrow. demographic of women who would be in the. situation but it gives them legally. potentially a path to do something. bigger and the Biden Administration. actually decides to be very aggressive. with this mtala law and so very soon. after roie Wade is over returned the. Biden Administration sues Idaho and says. your abortion ban is violating this. federal law and your abortion ban cannot.

stand and Pam what does Idaho say in. response what's its argument here so. Idaho says it is not violating mtala and. it accuses the Biden administration of. wanting to turn emergency rooms into. abortion clinics and wanting to force. Idaho doctors to provide abortions. against Idaho's law and this is also. where that phrase unborn child comes up. Idaho is picking up on that language in.

mtala and it's saying that because the. federal law mentions unborn child that. that means you have two patients to. consider when a pregnant woman goes to. an emergency room and if you're doing an. abortion then you're in their view. killing one of those two patients and. that's why they are outlawing the. ability to do that so in other words. this law from 1986 is really being used. by both sides through the lens of 2024.

both by the Biden Administration who's. saying it says that abortions need to be. provided in emergency rooms and by Idaho. saying no not so fast the unborn child. has equal protection here because that's. in the law right so you have both sides. using this 40-year-old law that really. had nothing to do with abortion when it. was passed and they're trying to cast it. in a light that serves their side of the. abortion debate.

and so this case ends up in the Supreme. Court and it's important to note that. this fight isn't just between Idaho and. the Biden Administration there are about. half a dozen states that have strict. abortion banss like Idaho including. Texas which has been embroiled in a. lawsuit over amtala with the Biden. Administration also so whatever the. Supreme Court rulle rols in this case is.

going to have implications across the. country and it's going to help shape. what states can do if they want to ban. or restrict. [Music]. abortion after the break my colleague. supreme court reporter Abby venicle on. the oral. arguments we'll be right back.

so Abby our colleague Pam Bellic just. walked us through how this very unusual. Idaho abortion case got to the Supreme. Court you covered the oral arguments. last week how did they go so a lot of. the oral argument really focused on a. question about how far states can go. when they are crafting their own. abortion laws and sort of the backdrop. of this is that there's part of the. Constitution that deals with this.

question of what happens when a state. law and a federal law are in conflict. and it's called preemption and the. general principle is that when a state. and federal law Collide if they're in. conflict with each other that the. federal law wins and so the argument in. this case really focused in on whether. the Idaho abortion law directly. conflicted with the federal Impala law. or not we will hear argument this.

morning in case. 23726 Mo vers and the argument started. out with the lawyer for Idaho Joshua. Turner Mr Turner thank you Mr chief. justice and may it please the court when. Congress amended the Medicare act in. 1986 it put mtala on a centuries old. Foundation of state law and Turner says. that he does not see a direct conflict. between Idaho's abortion law and the. federal law nothing in mtala requires. doctors to ignore the scope of their. license and offer Medical Treatments.

that violate state law he argues that in. Idaho if a woman's life is in danger. that there are exceptions that allow. abortions and that there's flexibility. for doctors to use good faith judgment. and he's saying that Idaho is satisfying. the federal Law's requirement to provide. women with stabilizing care the court. should reject the administration's. unlimited reading of mtala and reverse. the disregards judgment I welcome the. Court's questions in other words you. know nothing to see here our ban gives.

exceptions if the woman's life is at. risk and that is in full compliance with. this federal law this mtala that. mandates care right so how do the. justices respond to this argument. Turner's making so when the lawyer for. Idaho started making that argument a. group of justices right away seemed. skeptical and those were the liberal. justices Council the problem we're. having right now is that you're sort of.

putting preemption on its head Justice. Sonia Sor jumped in pretty quickly to. say what do you mean that there's not a. conflict between Idaho's abortion law. and federal law Idaho law says the. doctor has to determine not that there's. merely a serious medical condition but. that the person will die yeah that's a. huge difference Council we agree and you. know to kind of bring this down to I. answered the following question and.

these are hypotheticals that are true. Justice Sodom starts with these. hypotheticals of cases and she explains. that they're pulled from real life. examples when delaying an abortion until. a woman was close to death had permanent. effects on the Woman's Health imagine a. patient who goes to the Y with pre-. prompt 14 weeks she gives one example. where there's a patient whose water. broke at 14 weeks in the pregnancy uh. she was in and out of theal Hospital up. to 27 weeks the baby died she had a.

hysterctomy and she can no longer have. children and she said that Delan and. abortion caused this woman to lose her. fertility all right you're telling me. the doctor there couldn't have done the. abortion earlier and Justice Sodor asks. would Idaho's abortion ban allow. abortions in this kind of situation when. a woman's health is Gravely affected. even though she didn't die and Idaho's. lawyer responds that it's up to the. doctor again it goes back to whether a.

doctor can in good faith medical. judgment that's a lot for the doctor to. risk and that this is Case by case the. examples I'm kind of shocked actually. because I thought your own expert had. said below that these kinds of cases. were covered and you're now saying. they're not and as this exchange is. going on another Justice jumps in which. is a bit of a surprise because it's. Justice Amy cone Barrett who is one of. the Court's conservatives and she jumps. in and says well you're hedging I mean.

Justice sotoor is asking you would this. be covered or not and it was my. understanding that the legislator's. witnesses said that these would be. covered wait a second in the record in. the documents leading up to this case. she thought that Idaho was arguing that. those kind of examples the kind of. example where you know a woman needs an. abortion or she has to have a. hysterectomy this sort of really extreme. loss of organs and loss of future. fertility she says I thought all of that.

was covered she's essentially looking at. these medical scenarios and saying hold. on a second wait there's a question here. about whether that would be legal and. kind of scratching her head which is. interesting and unusual given that she's. a conservative who's pretty skeptical. usually of arguments in favor of. abortion rights that's right and of. course we can only observe what she said. and try to figure it out but you know. she might have found herself more in an.

alliance with the liberal justices which. Not only would be surprising given her. sort of positions and her past record on. abortion but also could potentially set. up a gender split on the Supreme Court. in an abortion case which would be you. know pretty stunning okay so interesting. kind of gender divide forming here what. do the men on the conservative side of. the Court say so the men on the court.

the conservative justices they jumped in. pretty quickly after that and Justice. Kavanaugh comes in just want to focus on. the actual dispute as it exists now. today and he's kind of suggesting that. the justices turn away from the. hypotheticals and focus back on what it. actually says in the legal documents. that were filed by each side before the. oral argument 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 and Justice Kavanaugh says that. the federal government in their briefs. listed all these specific conditions. where a woman should be provided access. to an abortion under the federal mtala. law and based on Idaho's own legal. filings he says the state says it would. allow exceptions for abortions in these. same types of situations if you're the. one who said it in your reply brief that. there's actually no real daylight here.

in terms of the conditions so I'm just. picking up on what you all you all said. I understand so in other words the. conservative justices are really kind of. responding in the way that we would. expect them to right they're sympathetic. to Idaho's argument they're saying that. law is flexible enough to comply with M. tala that's right thank you Council and. so that sort of wrapped up the first. part of the argument and the next person. up to the podium was the lawyer arguing. for the federal government General.

preer Mr chief justice and may it please. the court so what did the federal. government solicitor general argue what. was her case so Elizabeth progger who. you know she's actually from Idaho oh. right yes and she argues you know before. the court all the time and she started. out by bringing the argument back to. this idea that the liberal justices were. really focus on before no one who comes.

to an emergency room in need of urgent. treatment should be denied necessary. stabilizing care which is the federal. government's view that there is a. profound gap between what mtala requires. and what is in the Idaho abortion law. the situation on the ground in Idaho is. showing the devastating consequences of. that Gap and she points to the real life. consequences of this one hospital system. in Idaho says that right now it's having. to transfer pregnant women in medical.

crisis out of the state about once every. other week that's untenable and Impala. does not countenance it and the solic. general is saying that this has you know. gotten to the point where every other. week Idaho hospitals are airlifting. women to hospitals in other states to. provide abortion care airlifted out of. state and is that true yes so there's. been local reporting in Idaho that since. this abortion law has gone into effect. which has just been you know a number of.

months that six women have been. airlifted to other states so Justice. Kagan pushes on that you know it's it's. become transfer is the appropriate. standard of care in Idaho but it can't. be the right standard of care to force. somebody onto a. helicopter she says that it just doesn't. seem to make sense that the right. standard of care is to put a pregnant. woman on a helicopter to another state. jceo. but one of the most interesting things.

that happens in the interaction with the. solister general is actually that. Justice Alo jumps in and he sort of. takes the conversation in a totally new. Direction um we've now heard let's see. uh an hour and a half of argument on. this case and one potentially very. important phrase in mtala has hardly. been mentioned and that is M tala's. reference to the woman's quote unquote. unborn child isn't that an odd phrase to.

put in a statute that imposes a mandate. to perform abortions have you ever seen. an abortion statute that uses the phrase. unborn child and he says you know isn't. it strange that this federal law that. you are arguing to require abortions. includes language that would typically. be used by people who are against. abortion and it seems that the pl. meaning is that the hospital must try to.

eliminate any immediate threat to the. child but performing an abortion is. antithetical to that Duty it's not an. odd phrase when you look at what. Congress was doing in 1989 there were. and the slicer General responds by. saying let's look at back to what this. law actually meant and what it was. designed to address in the. 1980s and she explains how when this law. went into effect You Know Not only would. a woman potenti be dumped from one. emergency room if she couldn't pay but.

that if a woman came in and the medical. problem was actually with the fetus that. she also might be dumped Congress wanted. to expand the protection for pregnant. women so that they could get the same. duties to screen and stabilize when they. have a condition that's threatening the. health and well-being of The Unborn. Child and she says that's actually why. the language is there that it's not sort. of anti-abortion code so what's Alo. really up to here I mean clearly this.

idea of unborn child you know it's very. important in the anti-abortion movement. it's essentially linked to this idea of. personhood and that the fetus is. actually a person that should be. protected but that's not really what. this case hinges on so what's he. doing you know we again can't get inside. Justice alito's head but in the lead up. to these arguments there had been sort. of speculation about whether the idea of. fetal person Ood would make an. appearance it's not the focus of the.

legal arguments here but if you look. back to the do's case that case also was. not a fetal personhood case but that. language made its way into his opinion. he wrote the majority opinion for the. court and so I think it'll be. interesting once a decision comes out. whichever way it goes with this court. whether the language of fetal personhood. makes it it way into the Court's.

decision in some way and that is. important because you know it's the. Supreme Court and the language that they. use then gets cited by courts and judges. all over the country and right now fetal. personhood is not sort of the accepted. mainstream in the legal world but. language like that from the Supreme. Court it could be cited in cases around. the country interesting so so even. though the case isn't actually about.

that Alo can just kind of sprinkle it. through and it could be cited later as. evidence that the Supreme Court is. actually elevating this and talking. about this yeah that's a possibility and. it's definitely something people will be. watching out for when the court makes. its decision and the case later this. year thank you Council the case is. submitted so Abby do you have a sense. after this very interesting set of. arguments here how the justices will. rule you know we're in a bit of.

uncharted waters here it's hard to say. how the court is going to come out in. this case I think Justice bar jumping in. to say that she was shocked by some of. the arguments being made by Idaho raised. some questions about whether she could. potentially align herself with the other. you know women justices who are all. liberals but a majority of the. conservative justices did seem to be. know sympathetic to Idaho's arguments it.

could be a case that comes down to. Justice Barrett and the Chief Justice. who was actually pretty quiet during. arguments and you know wouldn't say that. it was clear how he was going to come. down on this and you know I think that's. something that's important about this. case is that you know it's likely to. give us a substantive real window into. how the justices now post jobs are. thinking about abortion and how it's.

playing out in all these different ways. in States throughout the country Abby I. guess I'm thinking you know whatever the. outcome is there's something else that's. happening here and I'm thinking here. about the timing right the ruling will. come just as the presidential campaign. really heats up in the end of June and. we know that very strict abortion bans. don't play very well to the mainstream. American voters so if this ruling does.

go for. Idaho it would draw lines around. abortion access that are even more. restrictive than many states have at. such a political. moment you know I think it's certainly. fair to say that this decision will be. closely watched and that it also could. draw the court into the politics of. abortion and one of the things you know. that I just can't help but think is that. when the court made its decision in DOS.

to overturn roie weight that Justice Alo. made a point of saying that the court. was getting out of the business of. abortion that this was something that. would be left to the states and now the. court you know as we've seen in this. case is wrestling with very sort of. granual hypotheticals about you know the. different emergencies that could come up. and when is this okay and when is this. not okay and they are still very much in.

the weeds of. abortion so so much for the Supreme. Court being done with abortion cases. it's right back there smack dab in the. middle of one of the most contentious. issues in American life that's right it. certainly is and so yeah it's it's hard. not to think about the court putting. itself again in the middle of this. Fierce debate. in the middle of a huge political.

fight Abby thank you thanks so much for. having. [Music]. me we'll be right back. [Music].

here's what else you need to know today. we can see different cohorts of NYPD. officers one is going across Butler. Lawns towards Hilton Hall the on Tuesday. tensions over Pro Palestinian protests. continue to escalate on University. campuses across the country at Columbia. University in New York hundreds of. police officers in riot gear began. arresting demonstrators on Tuesday night.

about 20 hours after protesters had. occupied a campus Building they're. entering the encampment now there I I. mean I know sory reported on this before. there is about a crowd of I'd say 30 or. 40 police officers with batons and uh. zip ties right outside the Gaz of. solidarity encampment right now the. Columbia University student radio. station reported that police used tear. gas to disperse people and that at least. one person was lying on the ground. unconscious during the raid earlier in.

the day the University closed the campus. to everybody but students who lived. there and said it would move to expel. students who had occupied the building. in Oregon Portland State University. closed its campus after students there. broke into its. Library police officers made scores of. new arrests at universities in. California Georgia North Carolina and. Virginia more than 1,000 protesters have. been taken into custody on us campuses.

since the original Roundup at Colombia. on April. 18th today's episode was produced by. Stella tan Alex Stern and Jessica Chong. it was edited by MJ Davis Lynn contains. original music by Maran Lozano and was. engineered by Chris Wood our theme music. is by Jim brunberg and Ben Lanser of.

[Music]. wonderly that's it for the daily I'm. Sabrina taveri see you tomorrow. [Music].