We're following the very high stakes U.S. Supreme Court hearing right now on emergency abortion care. Only moments ago, the justices pressed an attorney for the Idaho state's very controversial, a near-total ban, a position that law prevents doctors from performing abortions for pregnant women having a non-life threatening medical emergency like organ failure or infertility. Right now, the government is presenting its case, the crux of its argument. This law harms women and the nation's public health. Let's listen in right now. The U.S. solicitor general. Elizabeth, pray longer and Justice Creighton G. Brown Jackson are going back and forth criminal prosecution. The doctors can't provide the care because until they conclude can conclude that a prosecutor looking over their shoulder won't second guess that maybe it wasn't really necessary to prevent death. Thank you, counsel. Justice Thomas, Justice Alito, and we've now heard. Let's see here. An hour and a half of argument on this case and one potentially very important phrase in and Antalya has hardly been mentioned. Maybe it hasn't even been mentioned at all. And that is immortalize 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? It's not an odd phrase when you look at what Congress was doing in 1989, there were well-publicized cases where women were experiencing conditions their own health and life were not in danger, but the fetus was in grave distress and hospitals weren't treating them. So what you're saying is that you've seen abortion statutes that use the phrase unborn child. Doesn't that tell us something? It tells us that 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. But what it doesn't suggest is that Congress simultaneously displaced the independent preexisting obligation to treat a woman who herself is facing grave life and health consequences. Let's walk through the provisions of the statute that are relevant to this issue regarding the status and the potential interests of an unborn child under B one. If a woman goes to hospital with an emergency medical condition, that's the phrase, the hospital must either stabilize the condition or under some circumstances transfer the woman to another facility. So we have this phrase emergency medical condition in that provision, and then under E1, the term in medical emergency medical condition is defined to include a condition that places the health of the woman's unborn child in serious jeopardy. So in that situation, the hospital must stabilize the threat to the unborn child. And it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child by performing an abortion is antithetical to that duty. But if you go so far as to say that the statute is clear in your favor, I don't know how you can say that in light of those provisions that I've just read to you. The statute did nothing to displace the woman herself as an individual with an emergency medical condition when her life is in danger, when her health is in danger. That stabilization obligation equally once to her and makes clear that the hospital has to give her necessary stabilizing treatment. And in many of the cases you're thinking about, there is no possible way to to stabilize the unborn child because the fetus is sufficiently before viability that it's inevitable that the pregnancy is going to be lost. But Idaho would deny women treatment in that circumstance. It doesn't, even though it's senseless, doesn't. What I've read to you show that the statute imposes on the hospital a duty to the woman, certainly, and also a duty to the child. And it doesn't tell the hospital how it is to adjudicate conflicts between those interests, and it leaves that to state law. Now, maybe a lot most of your argument today has been dedicated to the proposition that the Idaho law is a bad law, and that may well be the case. But what you're asking us to do is to construe this statute that was enacted back during the Reagan administration and signed by President Reagan to mean that there's an obligation in under certain circumstances to perform an abortion, even if doing that is a violation of state law. If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus itself as an individual with an emergency medical condition. But that's not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her. And in a situation where her own life and health is gravely endangered, then in that situation, I'm tall. It is clear. It says the hospital has to offer her stabilizing treatment and she doesn't have to accept it. These are tragic circumstances, and many women want to do whatever they can to save that pregnancy. But the statute protects her and gives her that choice. Only way you try to get out of a statutory interpretation that I just posited is by focusing on the term individual and you say, aha, in the dictionary, that individual is defined to exclude an unborn child or a fetus. That's the only way you can try to get out of what I've just outlined. Isn't it true that under the dictionary that dictionary act definitions apply only if they are not inconsistent with the statutory text? And when you have a text that certainly you would dispute the fact that the hospital has a duty to the unborn child where the woman wants to and wants to have the pregnancy go to term its indisputably protects the interests of the unborn child. So it's inconsistent with the definition and the end of the In the Dictionary Act. No, not at all. The duty runs to the individual with the emergency medical condition. The statute makes clear that's the pregnant woman. And of course, Congress wanted to be able to protect her in situations where she's suffering some kind of emergency and her own health isn't at risk, but the fetus might die. That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is in grave distress. But the woman is not at all affected. Hospitals otherwise wouldn't have an obligation to treat her. And Congress wanted to fix that. But to suggest that in doing so, Congress suggested that the woman herself isn't an individual that she doesn't deserve stabilization. I think that that is a and erroneous reading of this. Nobody suggesting that the woman is not an individual when she doesn't, she doesn't deserve stabilization. Well, the premise of the question would be that the state of Idaho can declare that she cannot get the stabilizing treatment even if she's about to die. That is their theory of this case and this statute, and it's wrong. And let's talk first of all, Paula, remind us what's at stake right now. This is one of the major questions about what the justices meant after they overturned Roe v Wade. This is one of the cases that's gone back up to clarify. Okay. You kick this back down to the states. That's more complicated than you realize. This case specifically focuses on the state of Idaho and emergency care for pregnant women now under the abortion ban in Idaho. There isn't exception for women to have an abortion if their life is at risk, if that's part of what is needed to save their life. The Biden administration has come in and filed a lawsuit and said actually, under federal law, you shouldn't have to wait until a life is at risk. Instead, you can perform this procedure if you need to do so to stabilize a woman. So that is the crux of this argument today. And again, this is one of a few cases we're seeing this term. The justices have to grapple with their decision to overturn Roe. Yeah, it's a very significant decision. That's why we're monitoring and make Terrelle. I'm anxious to get your thoughts. We just heard in these oral oral arguments about women having to go out of state, Idaho in this particular case to get an abortion that potentially could save that woman's life. Yeah, you know, we've been to Idaho to talk with doctors and patients there to hear about the effects of this abortion. Ban. And that's something we heard from doctors. We talked with one doctor at the Maine health care system, the biggest hospital in the state called St Luke's. And she told us in the first prenatal visits for her patients now she's a family medicine physician. She counsels them on what to expect from pregnancy. And she says you should probably get Lifeflight insurance so that if you have an emergency and this is a rare complication but we'll have to fly you out of state. And we heard this from the justices just now talking about some data provided by St Luke's that last year when there was an injunction on this whole and taller aspect of the ban, one patient was transferred out of state just in the first few months of this year while that ban was lifted and Idaho's full ban could go into effect. Six patients were transferred that would annualize to 24 this year. So that's a small number of patients. These are rare emergencies, but it's a 20 fold increase, they're saying, because they don't have these protections. Taylor stands for the Emergency Medical Treatment and Labor Act, which Congress passed back in 1986. Sonia you're the law professor. Give us your major takeaway from what's been going on today. Yeah, well I think, you know, not surprisingly the conservative justices, Alito, Thomas and Gorsuch seem skeptical. But I think there's some real uncertainty about Amy Coney Barrett and the Chief Justice. Obviously, the liberal justices seem to be in favor of what the government's arguing. I you know, I think Kavanaugh was just speaking before we started talking now. So I'm curious to see what Kavanaugh asks the solicitor general But I think there's some uncertainty. There was a lot of focus on the federal conscience clause and whether doctors were required to perform abortions, if I'm taller, would demand it to stabilize medical care. And the question of the status of the the unborn child, the reference to that in the statute did come up with Alito, which could have implications for personhood is the obligation equal to the unborn child and to the mother. But that's the only justice who's really talked about that issue. I thought there might have been more discussion there.
