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Supreme Court Hears Arguments on Emergency Abortion Care; Future of Emergency Abortion Care Before Supreme Court; Dueling Protests Outside Supreme Court as Abortion Case is Heard. Aired 10- 10:30a ET

Aired April 24, 2024 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:00:00]

JIM ACOSTA, CNN ANCHOR: Good morning. You are live in the CNN Newsroom. I'm Jim Acosta in Washington.

This morning, reproductive rights are once again in the hands of the Supreme Court. For the second time in as many months, the justices will weigh in on the reality facing some pregnant women in post-Roe America, can states deny an abortion to a woman having a medical emergency, such as organ failure or infection, case in point, Idaho's restrictive abortion law.

Right now, one of the few exemptions in that state's abortion ban is when the life of the mother is imminently at stake. We expect the Supreme Court arguments from the government and a lawyer for the state of Idaho to begin shortly. We're going to show that to you live as it's happening.

But I first want to go out to CNN's Gabe Cohen outside the Supreme Court. Gabe, obviously both sides are going to be out in force in front of the Supreme Court. What can you tell us? What can you share with us right now?

GABE COHEN, CNN CORRESPONDENT: Well, Jim, look, the crowd has been very quickly growing. I apologize, it's hard to hear you out here. I'm in this sea of abortion rights activists right now. They gathered here, many of them, over the past 30, 45 minutes right outside the Supreme Court.

On the other side of all those barricades is going to be anti-abortion activists, who are going to have a program running at the same time as this one, right around 10L00 A.M. And, look, the program hasn't even gotten underway, and we have already seen some really tense clashes. At one point, a couple anti-abortion activists came over to the side, they were chanting, they were yelling, and they were surrounded by abortion rights activists, some of the organizers from these reproductive rights groups, trying to drown them out, trying to keep cameras from getting a look at them. There was a lot of tension there, a lot of shouting back and forth.

Finally, those two activists did walk away. But it could be telling as to what today brings, Jim, those arguments not even underway yet, and we are already starting to see tense moments. And we do expect a program with speakers to get underway around 10:00 A.M. as well. So, we'll see what that looks like in the coming minutes.

ACOSTA: Yes. Obviously, emotions have not simmered down since Roe versus Wade was overturned. We're seeing that on display outside the Supreme Court. Thank you very much.

Here with me now to discuss is CNN's Paula Reid, Meg Terrell, and constitutional law professor Sonia Suter.

Let me start with you, Paula What can you tell us about, you know, what we're going to be hearing, do you think, from these justices as they go over this case?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: So, another incredibly significant case asking the court to help them interpret their decision to overturn Roe v. Wade. And here, they're focusing on the state of Idaho, and the state has an abortion ban that does have an exception when we're talking about medical emergencies that threaten a woman's life.

But the Biden administration says that under federal law, you shouldn't have to let it get that far before in the context of a medical emergency, professionals can, you know, conduct this procedure. They say, look, if you need capacity to perform an abortion to stabilize a patient, that is sufficient under federal law.

So, that's what's at stake here. Do they need to wait in the state of Idaho before someone is in a medical life-threatening emergency or can you perform an abortion to stabilize someone? That's really at the core here. It's just another big question after they overturned Roe.

ACOSTA: Yes. Meg, what are the implications for medical professionals? Because, I mean, this is a huge issue out in Idaho. We're also seeing it play out in other states, like Texas. Florida and Texas, where hospitals, doctors, nurses, they're afraid to treat women who come into emergency rooms, go to their doctor with very serious complications during their pregnancies.

MEG TIRRELL, CNN MEDICAL CORRESPONDENT: Yes. And that's a huge problem. It's this gap between what the law in Idaho says, which is you can intervene to save the life of the pregnant person. But then if somebody has a medical emergency that is not immediately life threatening, the doctors there don't feel safe to treat them.

And so you have situations like severe preeclampsia or hemorrhaging or premature water breaking. These are situations where, you know, if you're at a certain stage of pregnancy, you can't deliver that baby if it's too early, but you need to save the life of the pregnant person or need to preserve the health of the pregnant person because it can affect future fertility or their organs. It could have all kinds of health consequences whether or not on the brink of death.

But that's what doctors are saying is really challenging for their care with the state (ph).

[10:05:01]

ACOSTA: Right. A mother wants to preserve her ability to have a pregnancy later on and so on.

And, Sonia, tell talk about this Idaho law a little bit. It forbids abortions in a medical emergency. It does say you can save the life of the mother. But, I mean, we're already seeing in Idaho, other places, where doctors are saying, you know what, I don't want to do practice. I want to move my practice to another state because of this restrictive ban. Yes, absolutely.

SONIA SUTER, PROFESSOR, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL: Yes, absolutely. It allows abortions if it is necessary to prevent the death of the mother, but necessary is a pretty strict condition. And so that means there could be all sorts of situations where patients are facing a serious threat to their health but they're not close enough to say that it's necessary to prevent death. And that means that these patients are left in that gap that Meg mentioned.

ACOSTA: And, I mean, just to ask the obvious question here, this world did not exist before Roe was overturned.

SUTER: Absolutely, right? Part of the challenge is the meaning of the statute, this federal statute that protects people in emergencies. And Idaho is trying to say that this is a new problem that the federal government is creating new rules. But, in fact, this has always been the treatment for abortions are sometimes the treatment for these kinds of conditions. It's just that it wasn't banned before.

And so Dobbs has changed the landscape. It's not that EMTALA has changed. It's that EMTALA plays out differently now that Dobbs allows abortions to be banned with very strict or no exceptions for health.

ACOSTA: Right. And, Paula, I mean, Dobbs was supposed to be sent back to the states and that was going to be the end of it. States would deal with it and so on. But that has not been the case by a long shot. I mean, within the last couple of months, we heard the case regarding Mifepristone. And this is yet another aspect of the post-Roe world that we're all living in now that the justices are going to have to sort through.

REID: Yes, sending it back to the states, easier said than done, which is why you're getting all these cases coming back up to the court seeking clarity.

Now, we've seen two of these major abortion cases this year. You mentioned the other one a few weeks ago that was litigated about Mifepristone, one of the two drugs commonly used in medication abortion. And these decisions are significant not only because they impact the women who may need these procedures or need this medication, also because it could have an enormous impact on the election.

Historically, we've seen that abortion is an issue that has always galvanized certain bloc of Republican voters. But since the overturn of Roe v. Wade, it's actually something that has really begun to galvanize Democratic voters.

These decisions not expected until late June, early July. That's going to be at the peak of the presidential campaign season. So, there is much more at stake here, potentially, depending on what these decisions end up being than just the actual decisions themselves.

ACOSTA: And to help our viewers out, Meg, one word we're going to be hearing a lot is EMTALA.

TIRRELL: Yes.

ACOSTA: We're going to hear that a lot during the arguments. We need to explain that to our viewers, which is a law passed in the 1980s that was supposed to tell emergency rooms that are receiving with federal funding that you cannot deny access, you cannot deny care to people. And one of the -- based on the research I was doing, one of the cases that media attention back then that led to this law being passed was a woman with a stillborn. So, there were cases back then with women with devastating pregnancies who were at issue in all of this.

TIRRELL: Yes, so it's the Emergency Medical Treatment and Labor Act is what EMTALA stands for. It was enacted in 1986. And if you read some of the coverage of why this went into place, it's almost sort of mind-boggling because we've lived for almost 40 years with this in place.

This was put in place after there were a lot of reports of what's known as patient dumping, essentially a lot of patients, many of whom who didn't have insurance who were moved before they were even known if they were stabilized from a private hospital to a public hospital for financial reasons, and this could include pregnant women.

And if you're in an emergency situation and you haven't been screened and stabilized before the transfer, data showed that there were poor outcomes. Patients even may have died because of this. So, this was really an important statute.

And I think what's really interesting in some of the arguments we may hear today, you hear from Idaho, is well, they didn't call out abortion specifically in EMTALA, and therefore it's a government overreach. And so we're going to hear like should everything be called out in EMTALA every kind of emergency medical situation. I think it will be interesting to sort of hear these arguments.

ACOSTA: But, Sonia, I mean, that is -- I mean, it's another reminder of -- I mean, some of these issues were playing out while Roe was still the law of the land, and yet laws like EMTALA were put into place. How do you expect some of the arguments to play out back and forth as we listen to this? Because obviously, you know, we're going to hear both sides of this very potent political issue that raises a whole lot of emotions for a lot of folks out there.

SUTER: Yes. I think one big issue is going to be what exactly does EMTALA require? So, the federal government says it requires that patients not be dumped if they can't afford to pay, but also that stabilizing care is provided, sort of a guarantee of emergency medical care.

And Idaho seems to be saying in some parts of the brief that it's really just about making sure patients get equal treatment, and it's not providing any kind of national standard of care.

[10:10:05]

And so I think that's going to be a big part of the debate.

It doesn't mention the word, abortion, but it also doesn't mention all sorts of other treatments that would be required to stabilize medical care. So --

ACOSTA: Emergency care is emergency care, yes.

SUTER: Exactly. And so you have to, in some level, leave it to the health care professionals to decide what is the appropriate treatment to stabilize a patient, and you can't list everything because there're so many conditions that could arise.

ACOSTA: And, Paula, I mean, not to, you know, try to predict what we're going to hear when these justices get going here, but it sounds as though where we're going to hear from justices like Sam Alito and so on is familiar arguments that we've heard.

And, actually, before I have you answer that question, I apologize, we're going to go right to the arguments. Here's Chief Justice John Roberts.

JOSHUA TURNER, CHIEF OF CONSTITUTIONAL LITIGATION AND POLICY: It put EMTALA on a centuries old foundation of state law. States have always been responsible for licensing doctors and setting the scope of their professional practice.

Indeed, EMTALA works precisely because states regulate the practice of medicine. And nothing in EMTALA requires doctors to ignore the scope of their license and offer medical treatments that violate state law.

Three statutory provisions make this clear. First, Section 1395, the Medicare Act's opening provision, forbids the federal government from controlling the practice of medicine. That's the role of state regulation. Second, Subdivision F in EMTALA codifies a statutory presumption against preemption of state medical regulations. And third, EMTALA's stabilization provision is limited to available treatments, which depends on the scope of the hospital staff's medical license.

Illegal treatments are not available treatments. Add in this court's own presumption against preemption of state regulations, combine that with the need for clear and unambiguous spending clause conditions, and the administration's reading becomes wholly untenable.

The administration's misreading also lacks any limiting principles. If E.R. doctors can perform whatever treatment they determine is appropriate, then doctors can ignore not only state abortion laws but also state regulations on opioid use and informed consent requirements. That turns the presumption against preemption on its head and leaves emergency rooms unregulated under state law.

It's unsurprising that no court has endorsed such an expansive view of EMTALA, and until Dobbs, nor had HHS. Everyone understands that licensing laws limit medical practice. That's why a nurse isn't available to perform open heart surgery, no matter the need, no matter her knowledge.

The answer doesn't change just because we're talking about abortion. The court should reject the administration's unlimited reading of EMTALA and reverse the district court's judgment.

I welcome the court's questions.

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?

TURNER: 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.

[10:15:13] 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: Okay. 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: 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 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 -- the treatment necessary to assure within reasonable medical probability that no material deterioration occurs. TURNER: Yes, let me respond in two ways. First, the objective standard that you set forth there, 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, that's --

KAGAN: 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.

TURNER: Well, and the more fundamental point is the definition that you quoted of stabilizing care in the operative position provision in B1 is also textually explicitly qualified by that which is within the staff and facilities available at a hospital.

KAGAN: That's the facilities available at the hospital.

And if you just look at that language, I mean, it's absolutely clear that that's not a reference to what state law involves the staff and facilities available. If you don't have staff available to provide the medical care, then I guess you can't provide the medical care. If you don't have the facilities available to provide the medical care, then you can't provide the medical care. A transfer has to take place for the good of the patient.

TURNER: This is a really important --

KAGAN: But this is -- the availability here, it's the availability of staff and facilities. It's, you know, do you have the right doctors? Do you have enough doctors? Do you have the right facilities? Or is it better for the patient to transfer them to the hospital a few miles away?

TURNER: You're exactly right. Do you have the right doctors? How do you answer that question except by reference to state licensing laws.

JACKSON: But you absolutely can't do that. I mean, that's the sort of the initial point that I was trying to make, which is that the 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.

[10:20:10]

That's the work of the statute.

TURNER: Justice Jackson, that's not even HHS's conclusion. In 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 ill. 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.

ACOSTA: All right. You've been listening to Supreme Court arguments over the very strict Idaho abortion ban and how it pertains to emergency abortion care and whether or not that is allowed in the state of Idaho obviously has national implications.

Back with me to talk about this, Paula Reid and Sonia Suter, a professor at George Washington University School of Law.

Sonia, let me go to you first and get your perspective on what we heard so far. We heard some of the liberal justices on the high court sort of pounce on this and we heard Elena Kagan saying, well, the EMTALA law says you're supposed to provide emergency care if you're receiving federal funding, and some of these emergencies, abortion services are going to have to be performed. What's going on here? I mean, she seems to be -- I mean, pretty aggressive questioning from all of the liberal justices on this.

SUTER: Yes. I think they're, they're basically saying that the statute seems pretty clear here, that you have to stabilize care and it really doesn't matter what the state law is. As Kagan said, this is really a law that allows the federal government to say something about the kind of care that can be provided.

And the response is, well, you know, it depends on what the state law is. But there's a section that talks about the availability of resources at the facilities. And more liberal justices seem to say, no, that's just about what the facilities offer. State law isn't what's at issue here because EMTALA allows the federal government to preempt state law.

[10:25:04]

And it wouldn't make any sense to have that preemption language if you said it doesn't matter, you have to do what state law requires.

ACOSTA: Yes. I mean, Paula, I mean, that's one of the issues here, is that, you know -- I guess the folks who are arguing the Idaho side of this are saying, well, this is federal overreach and the liberal justices, like Elena Kagan, are saying, well, EMTALA has been in place since the mid-1980s. There were already federal restrictions all these years. That's the way the law has been working.

REID: Exactly, Josh Turner making his debut before the Supreme Court. And in moments there, it showed that this was his first time arguing before the justices or the liberals, maybe the minority on the court, they were clearly the majority of questions and they were not buying what he was selling.

And you heard there Justice Sotomayor, she was really focusing on the potential human cost, right, if you agree with his interpretation, which clearly she does not. And he responded to that, he didn't really even acknowledge the question that she was asking. Instead, he just pointed to a subsection of the U.S. code.

So, this does not appear to be going well for him so far. But, again, we've only really, aside from Justice Clarence Thomas, we've predominantly heard from the liberal justices.

ACOSTA: All right, thanks to all of you. We're going to continue to monitor the Supreme Court arguments on emergency abortion care has a potential to really change the landscape, depending on how the high court weighs.

We're going to take a quick break. We'll be right back.

(COMMERCIAL BREAK)

ACOSTA: All right. Welcome back to our continuing coverage of the Supreme Court arguments over the restrictive Idaho abortion ban.

CNN's Gabe Cohen is outside the Supreme Court for us. Gabe, I understand it's been getting lively out there. What can you tell us?

COHEN: Look, Jim, we are listening to two dueling protests that are unfolding at the same time right behind us. Over there, that is an anti-abortion, a group of activists having their program. What we're hearing over there, a lot of talk about federal government overreach, talking about how abortion is never the answer, and basically saying states like Idaho should be able to control their own destiny when it comes to the issue of abortion.

What's happening behind me here, these are abortion rights activists, a much larger crowd having their own program, and they, what we're constantly hearing is abortion is healthcare, and that states like Idaho are preventing pregnant people from getting the abortion care they need during medical emergencies, the stabilizing care talked about in this federal law, EMTALA, basically saying that the delays are potentially extremely dangerous for pregnant people.

And, look, we have already seen, Jim, tense moments. Uh, between the protesters from both sides, we had seen a couple anti-abortion activists come over here. There was a bit of a clash, a lot of chanting and yelling back and forth between them and some of the abortion rights groups that are here. And so we're going to continue to watch these programs unfold.

But the crowd in the meantime has been growing as the arguments are happening inside the Supreme Court, a lot of discussion about what it means for so many Americans happening right outside.

ACOSTA: All right, Gabe, keep us posted on all of that. Thank you very much.

I want to go now to Mary Ziegler. She's a professor of law at the University of California, Davis. Mary, thank you so much for being with us.

What are your thoughts on the arguments that we've heard thus far? And if there is a ruling ultimately by the Supreme Court protects EMTALA across the country, ttate law that says if hospitals are receiving federal funding, you have to provide emergency medical care, and that includes abortions as well, might that reestablish some abortion protections nationwide? What are your thoughts?

MARY ZIEGLER, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA DAVIS: Well, I think it's really hard to get a read on what's happening so far because, of course, we know the Supreme Court has a conservative supermajority. We've heard almost nothing from any of the conservative justices, right? So, I don't know if that's because they're agreeing with their liberal colleagues or if they're just holding their fire and waiting until Solicitor General Elizabeth Prelogar is going to take her turn.

In terms of what would happen if the government is to win in this case, that too is complicated. We had reporting from the Associated Press just last week suggesting that even now when there was, prior to the court getting involved, a threat of fines and other penalties under EMTALA for hospitals, that a lot of hospitals were still turning away pregnant patients, even pregnant patients not seeking abortions, because they were afraid of state criminal penalties, in part because those fines were delayed, in part because it was sometimes difficult for the federal government to actually implement those penalties.

So, it would certainly provide some kind of baseline for patients seeking emergency treatment, whether it would be enough because doctors are so afraid of criminal law, I think, is still kind of ambiguous.

ACOSTA: And, Mary, I mean, just to get our viewers up to speed on this, if they're not paying that close attention to this aspect of the post-Dobbs world that we're living in, my understanding is that in Idaho and other states, there are real life scenarios already emerging where women are going in, they're seeking emergency medical care because of a complication with their pregnancy, and because of whatever state they live in, they are in some cases being told they cannot receive that care.

ZIEGLER: That's absolutely right. So, we're seeing some scenarios where hospitals are not wanting to treat pregnant patients because they're afraid of even coming close to violating the law. And we're also seeing, I think it's worth emphasizing, not only patients seeking abortion, but patients with wanted pregnancies who are experiencing miscarriage or stillbirth who are also being turned away.

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