S5, Ep. 28: Conscience protections in SCOTUS abortion cases

How do religion and religious freedom arguments interact with cases about abortion access? The legal landscape here is beyond complex, and in this episode, Amanda Tyler and Holly Hollman look at how conscience protections were discussed in two recent Supreme Court cases about abortion. There is a deepening religion and policy conversation in our country, and they discuss how that conversation is reflected in these oral arguments – from Church Amendments to the doctrine of preemption. 

SHOW NOTES
Segment 1 (starting at 00:38):  U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine

Amanda and Holly discussed state laws after the Dobbs decision two weeks ago – in episode 26 of season 5: Archaic laws and new theories emerge from state abortion debates

Learn more about the Arizona legislature’s repeal of the 1864 law in this article by Stacey Barchenger and Ray Stern in the Arizona Republic: Arizona abortion ban repeal signed by Gov. Katie Hobbs, but 1864 law will linger for months. What’s next?

Learn more about the 6-week ban on abortions in Florida in this article by Stephanie Colombini for NPR: Florida’s 6-week abortion ban is now in effect, curbing access across the South

We played a series of clips from the oral arguments in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, which the Supreme Court heard on March 26, 2024. You can hear the audio at this link. The clips we played featured:

• Solicitor General Elizabeth Prelogar (from 00:00:48 into the arguments)
• Justice Brett Kavanaugh and Solicitor General Elizabeth Prelogar (from 00:28:31 into the arguments)
• Justice Amy Coney Barrett and Solicitor General Elizabeth Prelogar (from 00:29:11 into the argument)
• Justice Ketanji Brown Jackson and Attorney Erin Hawley (from 01:16:40 into the argument)

Read an overview of conscience protections from the U.S. Department of Health and Human Services at this link.

 

Segment 2 (starting at 19:26): Moyle v. United States

Moyle v. United States is a consolidated case with Idaho v. United States.

“EMTALA” stands for “Emergency Medical Treatment and Labor Act.” Read what the American Medical Association says about the case and EMTALA at this link. 

We played a series of clips from the oral arguments in Moyle v. United States, which the Supreme Court heard on April 24, 2024. You can hear the audio at this link. The clips we played featured:

• Justice Elena Kagan and Attorney Joshua Turner (from 00:06:09 into the argument)
• Attorney Joshua Turner and Justice Elena Kagan (from 00:08:02 into the argument)
• Justice Amy Coney Barrett and Attorney Joshua Turner (from 00:23:54 into the argument)
• Justice Amy Coney Barrett and Attorney Joshua Turner (from 00:48:43 into the argument)

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC.

 

Transcript: Season 5, Episode 28: Conscience protections in SCOTUS abortion cases (some parts of this transcript have been edited for clarity)   

 

JUSTICE BARRETT: (audio clip) 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.
 MR. TURNER: (audio clip) No. I’m not saying that. That’s just my point, Your Honor, is that —
 JUSTICE BARRETT: (audio clip) Well, you’re hedging. I mean, Justice Sotomayor was asking you, would this be covered or not —

 

Segment 1: U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine (starting at 00:23)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m General Counsel Holly Hollman. Today we’re discussing recent oral arguments in two U.S. Supreme Court cases dealing with abortion. The issue of conscience protections for medical providers comes up in both cases.

Now, these cases are not primarily about religion law, which, of course, is what we at BJC most often talk about in our fight for faith freedom for all. But they are very significant cases for how people — women, in particular — can live their lives, and they reflect a deepening religion and policy conversation in our country, post-Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned Roe v. Wade and ended the constitutional right to abortion.

AMANDA: That’s right. And in many ways, today’s conversation is a follow-up of sorts to the conversation we had a couple of weeks ago, Holly, when we had an episode noting how the conversation is playing out in a couple of examples under state law post-Dobbs.

And since that episode in which we talked in part about an old, old law from Arizona, we do have an update for listeners. The Arizona legislature passed a repeal of the 1864 law, and that repeal was signed last week by the governor. But it’s unclear still exactly when the law will be repealed.

As the Arizona Republic reported, “The governor’s signature does not mean the ban goes away immediately. That could be months away. But once it is officially repealed, a 2022 law that prohibits most abortions after 15 weeks of pregnancy will become effective.” And we’ll add a link in our show notes to an article with more details about this ongoing issue in Arizona. And that’s just one state and how this is playing out.

HOLLY: Exactly. The legal landscape is really beyond complex, and in many places, I would say, you know, just frightening for women and their health care needs. And, Amanda, as I remember you said in that earlier episode, criminalizing women is a major topic in the upcoming election season, so —

AMANDA: I mean, it’s unbelievable —

HOLLY: — it’s on people’s minds.

AMANDA: — that we’re saying that, criminalizing women and their doctors for performing abortions.

HOLLY: And soon after we recorded, then Florida’s six-week ban on abortions went into effect, and so it’s really not surprising that this issue is going to garner a lot of attention. It should, and particularly this law in Florida, because as I understand it, Florida has been a state, among the southern states, where abortion access had been most reliably accessible. So this law in Florida is having not only a huge effect on women in that state but really throughout the whole region.

And as we see these developments, you know, we want to understand and point out some of the ways that religion and religious freedom arguments interact with the abortion debate. So today we’re going to look at these two cases in which the Supreme Court heard oral arguments recently, and specifically we’re going to note this issue of conscience protections within the larger issue, the larger issue of laws that protect or deny access to abortion services.

AMANDA: That’s right. And in that latter piece, Holly, the laws that are protecting or in many more cases now denying access to abortion services, religion is playing a role in the wings or in the background. But in these two cases, there are some intersections with religion and law, and how the Supreme Court is considering them.

So the first case is U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine. And on March 26, 2024, the U.S. Supreme Court heard oral arguments in this case. So we’ll give a little bit of a background on the case.

Alliance Defending Freedom represents anti-abortion groups challenging the FDA’s approval of mifepristone in 2000 and protocols for prescribing and dispensing the medication in 2016 and 2021. Mifepristone is one of the two drugs that are used in the medication abortion regimen.

Last year a federal district court judge in Texas sided with the plaintiffs and suspended the FDA’s approval. The U.S. Court of Appeals for the Fifth Circuit then partially stayed the decision, maintaining the original approval of mifepristone from 2000 but striking down the changes FDA made in 2016.

HOLLY: Yeah. And that’s a lot of procedural history, but I think it kind of separates this idea that there’s the one issue about just normal FDA approval of a drug that goes through a process, and that goes back to 2000. And then there were these changes about how it could be dispensed in 2016 and, I think, later in 2020.

And so, you know, there are other podcasts you can listen to to get the details about the development of these laws. We’re not so focused on that, other than to say, as the case went to the Supreme Court, it had a more narrow issue, and still we are listening for this issue of conscience protection.

So as the case proceeded to the Supreme Court, they had a pretty complex set of procedural issues with it. But the main thing is that the Supreme Court’s oral arguments focused on the issue of whether or not the plaintiffs, who are individual doctors and four groups of doctors who oppose abortion on religious and moral grounds, have legal standing based on their argument that they’re injured because they have to treat patients who might present to the emergency room after taking this mifepristone.

AMANDA: And the operative word being “might.” They say in the hypothetical that treating these patients who could present to the emergency room after they hypothetically have complications from taking this drug which is routinely prescribed, that if they were having to treat them and provide abortion care to them, then that would violate their conscience rights.

HOLLY: Yeah. So as the Court heard this case, there was a lot of discussion of whether they had standing. And, of course, that’s the doctrine that is required for someone to bring a case, to have the knowledge, ability, close enough relationship to what’s going on in the case to actually pursue it in court. And it requires the plaintiffs to have a cognizable injury. It can’t be just this hypothetical.

And importantly, these doctors do not prescribe mifepristone, and instead, they are raising this hypothetical concern about possible negative consequences of taking the drug, though as you note, Amanda, there doesn’t seem to be much concern about that. It’s a drug that’s been safely prescribed for many, many years, and it’s regularly used in common medical practice.

AMANDA: And so at the oral argument, U.S. Solicitor General Elizabeth Prelogar, who was arguing the case on behalf of the government or the FDA in this particular case, argued that the plaintiffs do not have standing. We’ll hear from General Prelogar here.

GENERAL ELIZABETH PRELOGAR: (audio clip) Their theories rest on a long chain of remote contingencies. Only an exceptionally small number of women suffer the kind of serious complications that could trigger any need for emergency treatment. It’s speculative that any of those women would seek care from the two specific doctors who asserted conscience injuries, and even if that happened, federal conscience protections would guard against the injury the doctors face.

AMANDA: So Prelogar is referencing existing conscience protections in federal law that already protect health care providers who refuse on religious or moral grounds to perform abortions. And we’ll link to the U.S. Department of Health and Human Services’ overview of existing protections in show notes.

HOLLY: Yeah. And, Amanda, I think the case is complicated in trying to understand that it reached the High Court, focused particularly on standing that they claim related to FDA actions that changed how the drug could be dispensed, not the actual approval of the drug in the first place, but the way it went to the High Court is about how they changed the rules to make it easier, more accessible without an in-person visit.

It made it hard to follow, to see that it’s even that much more tenuous that these doctors could ever be in a situation that would violate their conscience as most people would understand it. Now, that doesn’t say anything about the extent to which conscience arguments can and are sometimes made and have to be seriously considered.

AMANDA: One would think, one could argue that the FDA was actually taking some of the doctors out of the process of actually administering the drug by changing the protocols.

HOLLY: Uh-huh.

AMANDA: But that’s not the argument these doctors are making.

HOLLY: Yeah. And Justice Kavanaugh pushed on this a little bit more, so we’ll play Justice Kavanaugh and Solicitor General Prelogar’s response.

JUSTICE BRETT KAVANAUGH: (audio clip) Just to confirm on the standing issue, under federal law, no doctors can be forced against their consciences to perform or assist in an abortion. Correct?

 

GENERAL PRELOGAR: (audio clip) Yes. We think that federal conscience protections provide broad coverage here.

HOLLY: Justice Barrett pressed Prelogar on whether the issues other than abortion that arise would also be covered by existing conscience protection, so, you know, here we go. We know that that’s what we will hear at the Court, that, okay, you’ve got this conscience protection, check, and then let’s make sure that it goes far enough to cover other hypothetical situations.

JUSTICE AMY CONEY BARRETT: (audio clip) Would that be true, even if the declarations were interpreted as respondents do, to say that they regard any participation, even transfusions or D&Cs after the abortion is otherwise complete, because tissue needs to be removed?

 

GENERAL PRELOGAR: (audio clip) Yes. I think that would be true, so the most relevant church amendment provision is 42 U.S.C. 300a-7(d), and its language says that a doctor shall not be required to perform or assist in any part of a healthcare program that would violate the doctor’s religious or moral beliefs. So it’s tied to the nature of the doctor’s beliefs, rather than particular procedures.

AMANDA: The church amendments that General Prelogar referred to there were enacted by Congress in the 1970s, shortly after Roe v. Wade, to protect the conscience rights of individuals and entities that object to performing or assisting in abortions, if doing so would be contrary to the provider’s religious beliefs or moral convictions.

HOLLY: Amanda, that’s, you know, interesting to me that back at that time, there was this awareness, of course, that abortion is a very serious medical procedure and that there are conscience issues that arise, particularly for some religious people, and that that would be thought of and protected at the time. And that’s continued to be in the law all of these decades after where the discussion about religion and abortion has changed considerably.

AMANDA: Yeah. I think we see there agencies responding and Congress responding to concern in the wake of the Court finding a constitutional right to abortion. But what impact is this going to have on providers? And so they provided this conscience objection.

I do think it’s interesting to see it being raised in this particular case, when we’ve just taken away a right to abortion.

HOLLY: Right, right.

AMANDA: And so when you think about just how contracted the rights have been and then how that conscience protection is being asserted in this case, in a state, Texas — by the way, my state — that has severely limited any kind of access to abortion in the state. And here these doctors and groups of doctors are trying to prevent people in their state from even being able to receive by mail and be able to get a prescription for medication abortion when they couldn’t get an abortion — a medical procedure abortion in the state.

HOLLY: It’s also striking and telling, Amanda, how Congress acted and to think about a time when Congress could act pretty quickly and reasonably in response to a major need or development in law.

AMANDA: I know. It seems so quaint, as we’ve said before on this podcast: Congress actually responding to needs in a timely manner.

HOLLY: In this final clip, we’ll hear Justice Ketanji Brown Jackson question a lawyer for Alliance for Hippocratic Medicine, Erin Hawley, who is also the wife of Missouri Senator Josh Hawley. The clip gives us just a little taste of some of the arguments, what they were like — and they were much more extensive — and how attenuated some of these arguments were.

JUSTICE KETANJI BROWN JACKSON: (audio clip) Wait. I’m sorry. Complicit like I work in the emergency room and this is going on; I’m handing them a water bottle; I’m — like what do you mean complicit in the process?

 

MS. ERIN HAWLEY: (audio clip) So this Court, of course, takes religious beliefs and conscience beliefs —

 

JUSTICE JACKSON: (audio clip) Yes, yes.

 

MS. HAWLEY: (audio clip) — as it finds them. But what harms our doctors, Your Honor, is being involved in completing, in the terms of our declaration, an elected abortion. And it’s really not that hard to see why that might be a conscience harm.

HOLLY: So that’s simply recognizing the religious and highly protected conscience claim of doctors who are opposed, you know, based on their conscience, based on their religion and conscience to abortion. Now, how people view that conscience protection may be very different in this very different landscape for access to abortion rights.

AMANDA: Yeah. And I think particularly when parties like this group expand the idea of conscience and what that means as applied to a case. And I was really struck throughout the argument how many — first, how many justices asked about the conscience objection and, you know, how it was at play and how the parties were interpreting it, and at the government’s attorney really talking about how broad that exception was.

And basically saying that these doctors were not going to have to perform an abortion. They weren’t prescribing the drug. There really was no way that they were going to be coming into contact with patients in this way or even come close to even having to use their conscience objection, and if they did, that it was there for them when they needed it.

And then also Justice Jackson really drilling down with the government’s attorney and saying — you know, she said, the obvious commonsense remedy — we like commonsense remedies. Right, Holly? We like win-wins.

So she says, the obvious commonsense remedy would be to provide them with an exemption, that they don’t have to participate in this procedure.

And you say and you’ve said here several times that federal law already gives them that. So I guess, then, what they’re asking for in this lawsuit is more than that. They’re saying, because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all.

HOLLY: Yeah.

AMANDA: And that is such an overreach of conscience objections that really denigrates the whole idea of what a conscience objection is.

HOLLY: It does. And it’s something that we have to constantly think about and struggle with, because conscience protections, conscience claims, deserve respect. We should listen to them. We should try to understand them, you know, many times taking them on an individual basis.

And yet, they are not designed to give individuals control over the law, laws that have been legitimately passed and should be in operation, in play, that protect rights and interests of other people. So I think Justice Jackson there is really getting to this idea about how religious freedom, you know, should be something that protects our rights. It’s not something that you use to go after others.

Well, we’ll be watching this case and very interested to see what the Court does. You know, as it went to the Court, Amanda, we were watching it, but knowing that it had to do mostly with standing and FDA regulatory action, these areas that are not our primary areas of expertise.

We were also recognizing the importance of this case because of this backdrop, some people who are seeming to attack anything related to reproductive freedom, anything related to abortion, without this larger picture of women’s health that has changed very drastically since the Dobbs case. And so this case should be getting a lot of public attention.

On the day the Court heard oral argument, I was teaching that morning, so I wasn’t around during the argument to listen to it live, but I noticed that the road in front of the Court was still blocked midday, much after the argument, so I walked over from our office to see the demonstrations. I was interested in what was going on still after the cases were heard.

And there were advocates on both sides of the case having rallies, but they were primarily on the government’s side, I think. They seem to have garnered more support for people coming out that day with their bullhorns, standing in line, getting to the mic. You know, it was a good crowd. It was peaceful but loud, and there were some really clever signs that people were holding up that had pictures of the justices on them.

The Capitol Police were lined up with their backs to the Capitol, facing the Supreme Court, kind of watching this show of a rally and, you know, mostly women that were fired up and seemed to be pretty pleased, I thought.

And so I kind of asked some of the advocates, some of the leaders in the crowd that were probably in the courtroom, so I asked a couple what they thought about it, and they were typically guardedly optimistic in favor of the federal petitioners that opposed the standing of this group and, you know, defended the FDA action.

 

 

Segment 2: Moyle v. United States (starting at 19:26)

AMANDA: So the second case we’ll discuss today, Holly, is Moyle v. United States. It’s a consolidated case with the other case being Idaho v. United States. And the U.S. Supreme Court heard oral argument on it on April 24. This case involves a federal statute known as EMTALA.

HOLLY: Yeah. I know, as I’ve mentioned to you, Amanda, the only good thing about this case is that it’s kind of fun to say “EMTALA.” But as described by SCOTUSblog, the issue in the case is whether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother.

And the issue of enjoining this is on the ground that the Emergency Medical Treatment and Labor Act — that’s what EMTALA stands for, Emergency Medical Treatment and Labor Act — preempts it. So, again, we have a very complicated, sort of procedural case. We have an interaction between federal law, federal regulations, and what’s happening on the ground, whether in state legislatures or by activists.

EMTALA was passed in 1986 as a part of the Medicare system. Now, this is the big federal system where federal law provides payments or reimbursements to hospital for services and has particular requirements that go along with that. And in this case, the government challenged this new, very restrictive Idaho law, because it would be in conflict with this federal provision, and whenever that happens, this doctrine of preemption comes into play. The Court has to decide what governs.

AMANDA: Yeah. And a couple of points there, Holly. One, you know, before I came to BJC, I worked in Congress. I worked on the Ways and Means Committee which has jurisdiction over Medicare, and I learned that these payments that hospitals get, these aren’t just incidental payments. Basically hospitals in America would not be open, were it not for the support that they get from the federal government. So these payments that the federal government sends are very important to the local and state health care system all across this country.

And so with the spending power comes responsibilities or restrictions that the federal government might place on the receipt of that money, and that’s what we have when it comes to EMTALA.

You mentioned the Idaho law is very strict. It is, indeed. This Defense of Life Act was enacted by the Idaho state legislature in 2022. It’s one of these laws that followed quickly after the Dobbs decision, and it makes it a crime, punishable by up to five years in prison with some mandatory minimums — by the way, that are a couple of years in prison — for anyone who performs or assists in performing an abortion.

And the only exception to this total ban on abortion is, “only when it is necessary to prevent the death of the pregnant woman.” So just for the health of the mother is not enough, and if someone performs an abortion, they could lose their license, and they could go to prison.

HOLLY: Yeah. And as we were looking into this and trying to just understand this — you know, we can point to the site of the American Medical Association in the show notes — you see right there how that is — how they say that that is in sharp contrast to the federal EMTALA law, and they say because that, of course, protects patients not only from imminent death but also from other emergencies, the things that we would expect when people go to the emergency room and they need treatment. They expect a doctor to provide that, not to have to make a judgment like, wait, are they going to die. Oh, they’re not going to die. Okay. So maybe I don’t have to provide this care.

AMANDA: Right. But that’s exactly the conflict that’s being presented to physicians in Idaho emergency rooms, that they have to assess whether a woman will die if they don’t perform an abortion, because if they’re wrong, then they could be criminally prosecuted for that choice.

HOLLY: So the U.S. District Court stayed the order, and Idaho — again, the named party is the Speaker of the Idaho House, represented by Joshua Turner, but the speaker’s name is Moyle — sought emergency relief and claimed “a direct conflict between Idaho’s law and EMTALA.” Again, Alliance Defending Freedom is representing Idaho in this case, so, again, you see this large legal interest group very much involved in the anti-abortion effort.

So, Amanda, for our listeners, it might just be good to explain this case by kind of just talking through the way arguments went that day. We can follow the arguments, starting with Idaho, the petitioner, and then we’ll hear from the solicitor general.

So early in the argument, Justice Kagan describes what’s most significant about this federal law, EMTALA, going back to the 1980s, and particularly the emphasis on stabilizing care that you would expect in an emergency room. Let’s listen to Justice Kagan and the response of Mr. Turner, the attorney for Idaho.

JUSTICE ELENA KAGAN: (audio clip) What you just said is important, because when you concede that EMTALA imposes a stabilization requirement, it is this statute, the federal government interfering, if you will, in a state’s health care 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.

 

MR. JOSHUA TURNER: (audio clip) Yeah. Justice Kagan, we agree that EMTALA’s purpose was narrow to bridge this gap that existed in some of the —

 

JUSTICE KAGAN: (audio clip) Okay. So, I mean, we can just take off the table this idea that, you know, just because it’s a state and it’s health care, 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, 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 objective 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’s the content of the standard; you have to stabilize. What does that mean? It means to provide the treatment necessary to assure within reasonable medical probability that no material deterioration occurs.

AMANDA: Well, as usual, Justice Kagan makes a lot of sense as she sets out her question, and we see a clear purpose for a law that we learn later is focused on ensuring that people are not turned away from emergency rooms. Let’s listen to how Idaho sees it.

MR. TURNER: (audio clip) Yeah. Let me respond in two ways. First, the objective standard that you set forth and that understanding is contrary to the administration’s view. They say it is a totally subjective standard and whatever treatment a doctor determines is appropriate —

 

JUSTICE KAGAN: (audio clip) I think that that’s not true. I mean, I think you guys can argue about this yourself, but as I understand the solicitor general’s brief — and we’ll see what the solicitor general says — but the solicitor general says it’s not up to every individual doctor. This is a standard that is objective, that incorporates accepted medical standards of care.

HOLLY: And argue they did. As the arguments went on and on, we saw that they argued about the extent to which state law regulates medicine and should be governing, you know, to provide the standard of care, but also whether abortion is within the standard of care, and to what extent we should be able to trust the doctors’ good-faith judgment in knowing how to care for patients and that that would kind of take care of this conflict that the government sees, that there’s this conflict and therefore is arguing that federal law preempts this state law.

So that back and forth continues quite a while. Of course, a lot of the focus is on this relationship between federal law and this new restrictive Idaho abortion law. There were some textual arguments being made as the justices probed the attorney for Idaho on the statutory text argument, because it talks about that they have to provide care, “within the staff and facilities available at the hospital.”

So they’re kind of going back and forth to decide what part should be deferred to on the state side versus where is a possible conflict that the government sees to say EMTALA preempts this restrictive Idaho law. And, you know, you’ve got to apply EMTALA and stabilize the patient. You can’t avoid that by this Idaho law that seems not to care about it.

AMANDA: Yeah. And that doctrine of preemption, of course, is this idea that when there is a federal law that is in conflict with a state law, that the federal law wins, that it preempts the state law. It takes supremacy over the state law. And so Idaho, throughout the argument — and I would say that the state’s argument kind of shifted, I thought, throughout the oral argument but was really trying to convince the justices, oh, there’s nothing to see here; there’s no conflict. You know, we don’t have to decide about EMTALA, because these aren’t even in conflict at all. I think in the words that he gave to Justice Kavanaugh were, there’s really no daylight between what the Idaho law prohibits and what the federal law requires.

And so this may sound — and even as I’m saying it, it sounds overly technical and really dependent on interpretation of these two different statutes. But what I thought was so striking was how all four women justices on the Court were so actively involved in questioning Mr. Turner and giving all of these real-life situations and asking him to explain.

HOLLY: Yeah.

AMANDA: You know, how is emergency care being delivered by the state of Idaho in these very particular human situations?

HOLLY: Yeah. There were a lot of really bad hypotheticals being floated, and I think there was a lot of skepticism by the justices in the responses to that. Let’s play Justice Barrett.

JUSTICE BARRETT: (audio clip) 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.

 

MR. TURNER: (audio clip) No. I’m not saying that. That’s just my point, Your Honor, is that —

 

JUSTICE BARRETT: (audio clip) Well, you’re hedging. I mean, Justice Sotomayor was asking you, would this be covered or not, and it was my understanding that the legislature’s witnesses said that these would be covered.

HOLLY: And that, of course, led to the question of, okay, this is really hard. Who decides? We’re not getting the clarity that we want here from you, Mr. Attorney for Idaho, so who decides? And that’s when Chief Justice Roberts piped in and wanted to know that exactly. And he was told that nothing in Idaho law prohibits compliance with EMTALA.

But, of course, that’s the whole debate they were going back and forth, but the attorney for Idaho says that the Idaho Supreme Court had said, it’s the good-faith medical judgment of the doctors, and so he’s basically saying, you got to trust the doctors, and therefore, there’s not really a conflict here.

AMANDA: But I think the conflict, as you — and I know you’re just making the argument for Mr. Turner, but the conflict is that the Idaho Supreme Court had said that good-faith medical judgment, it still had to be that if they did not deliver the care, that the woman would die, not that her health would be severely compromised or she might lose an organ or she wouldn’t — her longer-term fertility would be harmed. None of those would fall within the good-faith medical judgment problem.

HOLLY: Yeah, yeah. It’s just so weird, because they’re — to some extent, they’re — you know, again, we’re in a courtroom with lawyers and justices or in other cases, judges, the state court, debating what doctors will do, what risks they’re going to take, and, you know, in facing this horrible situation that involved in this calculation is the prospect of prosecution. I mean, that’s just a horrible thing to add into the emergency medicine situation.

And the hypotheticals continued, and I felt like Mr. Turner for Idaho kind of felt the pressure of it at one point when Justice Sotomayor asked, you know, if there’s a situation that doesn’t present death but will present potential loss of life, like a loss of an organ, they can’t perform those abortions, you know, she asked him.

And he said, “Your Honor, if that hypothetical exists — and I don’t know of 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.”

So, finally he was pushed to a point, I think, that the justices wanted to see and that, yes, there’s this conflict.

AMANDA: And Justice Kagan did something similar with Mr. Turner when she pressed and said, “But your theory of EMTALA is that EMTALA preempts none of it, that a state tomorrow could say, Even if death is around the corner, a state tomorrow could say, even if there’s an ectopic pregnancy, that still that’s a choice of the state, and EMTALA has nothing to say about that?”

So she’s like saying here, We have an even more extreme law than what Idaho has, and the state law still has to take precedence here over the EMTALA requirements. And Mr. Turner says, “Yeah. And that understanding is a humble one with respect to the federalism rule of states as the primary care providers for their citizens, not the federal government.” And Justice Kagan, I think, in a really devastating way says, “It may be too humble for women’s health, you know.”

HOLLY: Yeah. Well, obviously it’s a very critical situation in Idaho now, this very real interference with medical judgment that we heard during the oral arguments that basically resulted in a much larger number of instances of having to helicopter patients out of state. That number has multiplied rapidly from what would be in the normal course. So, you know, it’s a dire situation.

The Court did also address this issue about whether or not the law somehow might require doctors who otherwise would not perform abortions to have to do so. Here’s Justice Barrett.

JUSTICE BARRETT: (audio clip) Does Idaho have any kind of conscience exemption for doctors under state law?

 

MR. TURNER: (audio clip) 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.

 

JUSTICE BARRETT: (audio clip) Is that because no federal conscience exemption applies?

 

MR. TURNER: (audio clip) I don’t know why they say that’s the line that they draw between individual doctors and religious institutions, because Coats-Snowe seems to cover both.

 

JUSTICE BARRETT: (audio clip) Okay. Thank you.

HOLLY: Of course, later, that is disputed by Solicitor General Prelogar. And then Idaho wraps up with a bunch of back and forth with Justice Jackson, and, you know, they’re just continuing to fight about the extent to which there’s a conflict and there might be preemption.

AMANDA: Yeah. And when you say it was disputed by General Prelogar, there’s actually a very extended back and forth that she has first with Chief Justice Roberts and then Justice Gorsuch jumps in on the action.

And she basically clarifies that the conscience objections are available to both individuals and hospitals, but the bottom line is that patients still need to be able to get care from somewhere — right? — that this isn’t something — we don’t need to be distracted by an individual doctor’s objection or even an entity’s objection, which isn’t even at play in this case, but rather just to know that those conscience exemptions and objections exist and that the question really here and the central importance of the case is making sure that patients are able to get the emergency care that they need from somewhere.

And, Holly, we really, in the time that we have today, have just scratched the surface of what we could have talked about in both of these arguments, and so we really would commend to our listeners, if you’re interested, you can listen to the audio or read the transcripts of the arguments for yourselves. And I know that we are both watching both of these cases and what the Court’s going to decide in them when it hands down decisions likely late in June.

HOLLY: I agree there’s a lot here, particularly on this issue of conscience and how it works. And also I just want to remind our listeners that, you know, we’re giving a lot of attention to this. It’s an important case, and we’re talking about protecting access to abortion when medically necessary in a very small percentage of situations, in emergency room situations.

So, again, this is not a case that is somehow defending abortion rights or somehow going to save abortion rights in some grand way. It’s simply trying to uphold EMTALA and the duty to provide stabilizing care in emergency rooms.

AMANDA: Yeah. In many ways I see this as the outer limit of what we would think could be protected, even in a state that totally bans abortion. And I guess we’ll see from the U.S. Supreme Court how far that outer limit really is.

HOLLY: That brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information, visit our website at RespectingReligion.org for show notes and a transcript of this program.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy with editorial assistance from Guthrie Graves-Fitzsimmons.

HOLLY: And you can learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

AMANDA: We’d love to hear from you. You can send both of us an email by writing to [email protected]. We’re also on social media @BJContheHill, and you can follow me on X, which used to be called Twitter, @AmandaTylerBJC.

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HOLLY: Join us on Thursdays for new conversations Respecting Religion.