>> he wants to make america great again, start by making things in america again. we will make america safe again and we will make america great again. >> here now i give you my word if you interest me with the presidency i will draw on the best of us not the worst this towering american spirit has prevailed over every challenge and lifted us to the summit of human endeavor. >> your unfiltered view of the convention powered by cable the se brought to determine whether a federal law alling emergency abortion care at hospitals receiving medicare funding preempts idaho's bann nearly all abortions due to the

court's dismissal a lower cot's order temporarily ocking idaho from enforcing its near-total ban will be left in place. next are the supreme court oral arguments in the case. >> you will hear arguments in 23-36.le >> when congress mandated the care act in 1986 it put centuries-old foundation a state law states have always been responsible for licensing doctors into setting the scope of the professional practice i deed because the ste regulate the practice of medicine and nothing requires doctors to ignore the scope of their cense and offer medical trtments that violate ste law. three statutory provisions make this clear. first 1395 the medicare act opening provision forbids the federa government from

controlling the practice. that is the ruling in a state religion. second a subdivision codifies the statutory presumption against preemption of state medical regulations and third the provision is limited to available treatment that depend on t license. illegal treatnt are not available and at this court's own presumption against the state regulations combine that with o need for clear and unambiguous conditions whatever treatment they determine is appropriate the doctors can iore not only state abortion both to state regulatns on opioid use and informed consent requts that t the presumptio against the preemption on itsead no court

s endorsed such a view and ignore had hhs everyone understands licensing law limit mediractice. that's why a nurse i available to f open-heart surgery no matter the need or knowledge. the court should reject the reading and reverse. i welcome thestio. >> normally when we have a preemption case to some relationship between the parties is the state being red by the federal government or is it engaged in some sort of a contractual relationship with

the emerge rooms tse there isn't the parties being regulated here are hls and doctors i think your question getting at the issue and we think that is a significant question. 's one of conflict between the law and on that question we don't think it is at all >> going to that you consider the express limitation within the statute of availability. >> can we step back and get your understanding of the statute? you made wreck recommendations on how it is working. let me tell you what i think and whether you agree, disagree or

otherwise. i thihere are two things are pretty plain on the statute. one it's about care for those who are experg emergency medical conditions, that's one thingdihink the statu doing and i aink that it is operating to displace thela prerogatives of hospitals or states or whomever with res to thato narrow slice of the healthcare unive. the hospital to only provide a destabilizing care in emergenciesor people who can pay for for example. when a hospital wants to provide destabilizing treatments to

those experiencing only certain kinds ofnd emergency conditions and they say here' the list of coitns and you have to providetabilizing care for those people. similarly if tte says it's our job to govern all ofh care in our state and we say only certain kinds can be given to people who are experiencing emergency medical conditions don't want whatever treatment and they say we are directing ay a matter of federal law when one presents with an emergency condition they have to be assessed at the hospital must do whatever is in its capacity to stabilize them. is that your understanding of the statute? >> w agree that it doesn't pose a fedal requirement but the question here is what is the content oft stabilization

when you can see that it imposes a stabiln i requirement. its statute that says it's there are federal requirements. >> you agree the purpose was narrowed to bridge the gap that existed. beus of the state and its health care that theal government has nothing to s about it. the feder government has nothing to say in the statute. now there's a question of what's the content of t sbilization requirement and as far as i understood in the opening

remarks you said if this is left to the states but if i'm just looking statute the state tells you what the content of the stabilization requime is. it's to provide such medical treatment as may be necessary to that no material deterioration is likely to occur. it tells you clearly it is an objective standard that has reference to accepting medical prti not just whatever o dr. happenste t think but here's thtent of the standard you have to stabilize what does that mean it means to provide the treatment within reasonable medical probability that no deterioration o >> let me respond in two ways. the objective standard you set

forth it is a totally subjective standard and whatever treatment a doctoretermines the solicitogeral says it's not up to every individual dr. it is a i standard with medical standards of care. the definitionbilizing care in the operative provision qualified by that which isb within the staff and fies available. >> it says within the staff and facilities available at the hospital and if you just look at that language it is absolutely clear at not a reference to what the statete law involves if they a n available for the

medical care than iuess you can't provide the medical ce. if you don't have facilities available to provide the medical care you c provide the medical care and a transfer has to take place for the goo of the patient. it's the availability of the staff and facilities. do you have the right of 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. you have the right doctors how do you answer that except by la.erence to state licensing >> but yout can't do that's that's thehe sort of initial pot i was trying to make which is that the federal mandate is to emergency conditions regardless of any other directive that the that would prevent that care from being provided. that's the work of the statute.

>>s not even hhs concsi in the state operations manual on page 36 of the brief it defines w makes a staff person available under the statute and they say -- >> saying they are not available inte state law doesn'tow this procedure? >> they are? availablehe extent for the medical lic and that is our argument. they want to draw far mor narrowil. theth whole purf preemption is to say if the state passes a lat violates federal law the state law is no longer fective so there is no state licensing law that would permit th would prevent the state to say don't treat diabeti with

insulin. treat them only with pills and adopted in the likelihood and we will get to that shortlyecause we believe this is better treatment. federal law would say you can't do t medically accepted objected standa of care required the treatment of diabetics wh insulin the medicallpted obligation of doctors when they have women with certain conditiot may not result in death but more than likely result in very serious medical conditions including blindness for some, for others the loss of organs and for some,

chronic blood strokes. idaho is saying unless the ctor can say in good faith this person's death is as likely oppodoerious illness, they can't pform the abortion. so, i don't know your aument about stateicsing law because this is what it does it tells state your licensing walls can't take out objective medical conditions that could save a person from serious injury or death. >> i think there are tworual responses and let me begin with a preemption point. a section 1395 telling hhs the federal government and courts just the oose. >> saying you can't preempt unless there's a direct conflict

if objective medical care requires you to treat women who present the potential with serious medical complications andhat abortion is the only thin tt cany prevent that, you have t do it. the law saysheerson has to determine that there is a serious medical condition there is a controvsyere but what i'sang -- if it doesn't have preemptive force not just idaho, it has a saving conti for abortions ent threatens a woman's life. what you're saying is that no

state in the nation, and there are some right now t don't even have that a an exception to the antiabortion laws, what you are saying is there is no federal law on book that prohit any state from saying even if a woman will die, you perform an abortion. >> i know of no state that doesn't include a lifesaving exception. >> your theory of the case leads to that conclusion. >> i think the point is that it doesn't address -- >> can i hear your answer? >> the administration's reliance a standard of like the best clinalvidence or some national norm i think is very

fraught you go outside the text to the standards might change day today and that boils down t question between a conflict between the idaho law says. provide whatever treatment yout have tacity meaning staff to stabilize patients that are experiencing emergency medicalme conditions. you cannot provide ive treatment unless doing so is necessary to t prevent a patient death. that not a d conflict.

under the provision the administration's reading would say cal h into action, putct her into the operating room and opened the patient up. >> so fine, let's say the administration's position is nurse can do it are you suggesting federal law wouldn't take precedence, would not preempt atate law that says no she can't. >> whetherer federal law cou d that is a difre question than whether it does do tnd i the answer is clear that it doesn't. it's like the ce where the controlled substances act the court noted that that was the provisions there rely upon and assuming medical profession being regulated.

they attempt to a the standards of care for every conceivable medical treatment. >> it definitely didn't address the standards of care. it left it to the medical community. it said you do whateeded to assure theoneterioration so i guess the question here is wi respect to certain medical conditions and abortion is the standard of care. there is a lifesaving exception for certain abo into that is theard of care. the standard of care is set and teined by. >> with respect to certain medilonditions it is a standard care because your own statuteha acknowledges

when a condition gets bad enough such that the woman's life is in peril theocrs are supposed to give abortions into the reason that's true is with t to certain rare but extremely oly important conditions and circumstances, abortion is the accepted medical standard of care. >> there is an exception uer -- >> another question is it also the accept sndard of care when rather than the woman's life in peril, the woman's health is in peril so let's take all of these cases that are rare buthe's a significant number where her life is not in p but she's going to lose her reproductive organs and ability to have children in theute.

unless an abortion takes place. that's the category of cases i which they say my gosh of courss e abortion isecessary to assure no material deterioration occurs and yet says sorry no abortion here and the result is these patients are now helicopter data states.in >> it is difficult situation andobody's arguing that theyy' don'tse tough medical theological moral questions like 22 other states and even congress recognizes that there are two patients to con in those circumstances. it's tough when you have these competing interests lif they didn't take theosion on what you characterize as a

tough questions but the federal law does take the position on that question and says you don't have to wa until the person is on the verge of debt if the woman is going to l her reproductive organs enough to trigger this on the part of the hospital to stabilize the patient. doctors wait>> until a patient e on the verge of death. there is no medical certainty requirement. these are hypotheticals that are true. holdn one second. you cann tell me the exception and i w back to the point even ifif idaho law fully compls with federal law, you have a woman early into her semeste and feels a gush ofld to leave

her body she was diagnosed and the doctors believe a medical intervti to terminate her pregnancy as needed to reduce the medic possibility of experiencing s the next day she passed out, thankfully was taken to the hospital and there sheved an abortnecause she was about to die. what you are telling us is the

case before would have said it' okay to have an abortion. >> under idaho's lifg exception a doctor could in good faith if the doctor could in good faith medical judgment determine. >> i'm asking you the florida dr. said i can't say she's going to die >> i do know she's going to bleed to death there is likely condition.ry serious medical

she was in and out of the hospital up to 27 weeks. this particularatient had to deliver her the baby died, she had a hysterectomy and can nono longer have children. you're telling me the doctor couldn't have done the abortion earlier? whether a doctor can i faith medical judgment. when idaho law changed to make the issue wth she's going to die or no ohave a serious medical issue there is a daylight by your standards, correct? >>it very case-by-case. you are now saying they are not. asking whether this would be

covered or not and it's my understanding the legislure's witnesses said that these would be cov >> they said if they were exercising their medical judgment they could in good faith to determine that lifesaving care was necessary. >> some might reach a contr conclusion. if they reached the conclusion that the legislations doctors did what they be prosecuted under the law? >> if they reached the conclusion what did the pros think differently if they thought i don't think any conclusion.doctor can draw >> that is thee of the discretion.

there are regulations but i think that the guiding star here is the planned parenthood se that is a lengthy detailed treatment of this law and it made clear tt there is no medical certainty t requirement you do not have to wait for the mother to be facing death. >> what happens if a dispute arises with respect to wheth or not t doctor was in the confines of idaho law? is the doctor subjected to the vi by a medical authority? exac how is that evaluated because it is an obvious cce if an individual eon for a doctor and we areg a debate about is that covered by your submission that nothing in idaho law prohi who makes

the decision of whether or not something is within or without? >> i imagine there arere two was it can be enf the board of medicine has a licensing oht and the idaho supreme coure made clear that the med judgment isn't going to be based on the objective standard what a reasonable doctor would do. the second way would --. >> what is the standar >> the good faith medical judgment. >> and if there'somplaint against the doctor that his standards don't comply and say the particular emergency room he his own particulartandard? >> what the supreme court has said is you may consider another doctors opinion on the question of whether that pretext will medical judgment, not a good faith one. >> justice thomas, justice

alito. >> i would think that the concept of good faith medical judgment must take io account some objective standards but it would leave aerin amount of leeway forew an individual doct. th is how i interpreted what the state supreme court said. ve been presented here today with very quick summaries of cases and asked to provide a snap judgment about what would be appropria ithose particular cases. honestly think you'ven given an oornity to answer some of the hypotheticals but would you agreehat if a medical doctor t is an expert inhe field were asked what would youo in these particular circumstances which i'm now going to enumerate the doctor would say this is not how i

practice medicine. i need to know a lot more about the individual case, would you agree with that? >> absolutely. and it doesn't just need to say abortion is the standard care. it sayshat expectant management is often times the appropriate standardfare so these are difficult questions that turn on the facts that are on the groundween the doctor as he is assisting with medical judgment he's bringo bear but it's also necessarily constrained by idaho law like of medicine, state law combines in some way. the difference between stabilizing a person who presents a serious medical coitn requiring stabilization then a person who pren a condition quoting idaho's words er there is a

great risk of death to the pregnant women you agree there is dayligh between the two? e will be some women who present a serious medical conditions that the federal law would require to beed who will not be treated underdaho lla >> i disagree with that. they are treating these women, not with abortions necessarily. >> the point which is they wil present withh a serious medical condition that doctors in good can't say will prevent death but will preventottial loss ofife, potential loss of an organ or serious medical complications for the woman they n't perform those abortions.

>> if that hypoal exists, and i don't know of a condition that is so certain to result in the loss of an organ but also noto transpire with death. if that exists, yes idaho law does say. >> all of the legal theories rely on us holding that federal law doesn't r, cannot preempt state law on these s.issues so when asked you the question if a state defines likelihood of death more strieny than iho does, you would say there's no federal law that would prohibit them from doing that. >> i would say that it does not contain a standard. >> there is no standard of care. >> in your briefing you make the positi here and almost argue

that n tir position that federal law requires stabilizing treatmentnd not equal treatment patients which was a position you took in the brief and you seemed t he backed off from it here and t agree federal law requires some stabilizing condition whether or not you provide it to other patients. about countless briefs say hhs h filed this is not an precedented position that in countless situations they cited hospitals for discharging patients thatt req an abortion as a stabilizing treatment. they discussed that and explicitly saide nothing in the

affordable care act shall be construed to rie any healthcareder from providing emerg svis as required bytate and federal law. dical providers have told us ator decades they understood federal and state to require abortions stabilizing conditions for people presenting ser medical risk. lower courts, there is at least cases of lower cou saying you have to provide abo so thist is not an unprecedented position by the government. >> absolu is. the administration sites 115 rows of enforcement instances.

it doesn't make their position. it's not just that there are few instances not just on the ofbortion, but atance where they come to the hospital and essay you have to provide a treatment that is contrary to state law. ere are standards of care aren't there. certain tragic circumstances as you yourself acknowledge where a woman's life is ineril and abortion is the appropria standard of care. and it goes further and says the appropriate standard of care can't only be about protecting

the woman's life but also about protecting a woman's health. at's what it says doesn't it? >> it defines the emergency medical condition with a broad set of triggering conditions but what is the stabilization requirement and that is qualified by the availability term. it doesn't result into a deterioration as to the emergency condition. nothing about to be at death's door. >> there is a standard of care wi rpect to that if a woman is going to lose her reproductive organs unless s has an abortion what happens in certain tragic circumstances a doctor is suppo to provide an abortion isn't that right? >> it doesn't contain a standard of care. i don't know whe administration -- >> do you dispute that there is

a standard of care when a woman is about to lose her reproductive organs unless she has an abortion that doctors would not to say and abortion is the appropriate standard of care in that situation? there is a national standard of care that requires a top-down approach and it's drawn the line on a difficult question and it's inconceivable to congress attempted to answer this very fraud complicated question and four pages of the cod >> congressai to any condition in the wld if an emergency paen comes in you're supposed to provide the emgency care that will ensure that's congress said and thend abortion exception heris on the part of the state.

with a standard of care that doctors accepted. >> abortion isn't exceptional. there are numerous cases the st intervene and say t standard of care in the circumstance for thision is acts not why. a dr. cannot destabilize chronic pain with more than a five day supplyly of opioids in pennsylvania it can be seven and others there's no limit. the reading. requires that those mitations get wiped out and you impose a national standard. there are numerous other instances where states are coming in and a saying in state the practice of medicine must conform to the stand and idaho has done that with abortion and opioids and marijuana use. there's countless examples. >> your theory although the suprem court has narrowed the reach of your statute it would apply even if it hadn't. it wldpply to ectopic pregnancies and evenfhere

were not death eon. all of your theory would apply no matter what idaho did, wouldn't it? >> i think the answer is there are other background principles and limitations like the rational review. preempts none of it.it even if death around the rner. even if there's in ectopic pregnancy that still that's the choice of the s and it has noing to say about it. >> it is a humble one with ect to the rule of the states is the primary care providers for t citizens. >> it may be too humble for women's health. >> i just want to understand some of your responses were rts to respond to some of questions we've heard today.

as i read yourriefs, you thought inases of the ectopic egncies for example that and abortion is acceptable and someone who isn't immediately going to die but may at some point in the future that that would be acceptable. it goesack to the good faith medical rd but if the doctor cannot determine in good faith death is going to afflict that woman. >> it doesn't matter if it's tomorrow, next week or a month from now. >> the whole notion of delayed ca is not consistent with the idaho supreme court's reading of the statute and what the statute says >> thehe good faith as i read te supreme court opinion that is the end of it. then what do we do with the

definition of individual to include both the woman and is asthe statute says the unborn child? >> we are naying that it prohibits abortions. for example in california, stabilizing treatment may involve abortiosistent with what the state allows the doctors to perform but i think our point with the unbhild in 1989 is that it would be a very strange thing for congress to expressly amendo require care for unborn children and not just when the child into the mother is experiencing active labor but the definition of the emergency medicdition requires care when the child at itself an emergency medical conditiordless of what's going on with the mothers of i would be strange congress to have regard for the unborn child and yet also be mandating

termination of unborn children. >> i just want to focus on the actual dispute as it exist now today between the governmts review and the idaho law because it has changed since the time of the district court's injunction of theupreme court and with a clarifying chae by the legie. you say in your reply brief for each of theonditions identified by the solicitor general where under their view of an abortion must be available you say i the reply brief it allows an abortio i each of those circumstances and you go through them on pages eight and nine for each of the conditions. is there any condition that you're aware of or the solicitor

general says requires that an abortion be available in an emergency circumstance as it is currently s >> the admation maintains rathat there such condition. thenes they identify -- >> what is your v >> i'm going to referce the situation the administration says that's not on the tables that's not a so where abortion is the onl stabilizing care required and i'm not where tha construct comes from o because under their view it's the doctors determination that controls the requirement but to be that as it may, the american psyccay association tt there no professional organizations that set abo is the standard of care says

that abortions are imperative for the mental health conditions and that sounds lik necessity. i don' how a woman presents at seven months pregnant and says i am experienciere depression from this pregnancy. m having suicidal ideation from carrying this pregnancy rth thatng that wouldn't under the administration's reading be the only stabilizing care. you think the ninth circuit l when itne is said everyci circumstance described by the administration's declarations involved life-threatening circumstances under which idaho law would allow an abortion the ninth circuit panel said. edconditions identified in theag affidavit were all conditi that would fit under the life-saving exception and that's telling because the doctors when with any of these harrowinge up circumstances. they identified other ones. the governmentd doesn't want to talk about is the mental

health exception. that is i don't know how you can heir understanding. >> i'm trying to figure out which we haven't had a lot of briefing about, there any otr ndition identified by the solicitor general where you daho law would not allow a psician in his or her good faith judgment perform an emergency abortio >> not in their affidavits. when you compare what a emergency medical condition is it is broader than the definition of the lifesaving exption and idaho laws of the pr -- >> that's what they say that th when we get down to the actual conditions listed, the examples going through those you've said in the brief that each of the conditions identified by the government actually idaho law allows them.

what does that mean for what we are deciding here if allows abortion and the circumstances. >> practical firstesponse is that it's under in injunct that includes an incredibly broad requirement tt preempts. >> i understand that and that may mean there shouldn't be an injunction. what is the sec >> i don't know how this court can makeetermination on whether there are any real wor conditions without first answering the statutory interpretation question of wha the stabilization requirement actually requires. that to be addressed not onlyot because that's -- >> picking up on theep brief you are the one that said it in the reply brief thathere's no

real daylight here in ter of othe conditions, so i'm picking up on what you all said. >> i guess i don't understand why we have to address the stabilizing condition if what you say isoby has been able to identify a conflict and on the meal heah thing, i just picked it up to check footnote five, idaho badly airs at assertg according to its terms would turn emergency rooms into del abortion enclaves by allowing pregnancy termination for mental health concerns. if that's the only space you can identify whey would preclude an abortion and they would require one and the government is saying no that's not so, what is the conflict? >> of coursee think we win, whether you find no factual conflict --

>> you are here because there is in injunction precluding you from enforcingin your law and if the law can fully operated. >> the injunction says the law is preempted in an incredibly broad range of circumstances. >> this was based on the injunction by the administration to avoid not in the face of the condition so what that means is the law can't operate when a doctor determines that the condition might need to be avoided that hasn't yet presented itself that's far broader than the emergency medical condition of stabilization requirement because the stabilization requirement is only triggered when there's been a determination. >> i would like to hear the solicitor t general's response o

that but let me ask one other thing about the consideration because i understand the point that a mental health exception would be far broader than idaho law and have the potential to expand the availability far beyond what the law permits but the stabilization requirement only exists up until transfer until transfer as possible. it's hard for me to see the condition that couldn't be stabilized before needing to transfer. at that point they could say weyou're stable, you're not immediately going to be suicidal we will leave you with a parent or a partner who will then seek appropriate treatment. >> that flexible view of stabilization is very different than the government's rigid view of stabilization which is if and emergency medical condition calls for an abortion it's got to be provided right there and then if it's available in this limited sense so the stabilization continuum that you're talking about i agree is

built in. >> it says until transfer. >> the transfer happens if the hospital is unable to stabilize, if the patient presents at the hospital and they have the capability, the availability to stabilize the condition in that casese of mental health, i invie the general to come up. to tell you i've got it all wrong and the mother that i described would not need to receive stabilization in that circumstance and would be transferred to a psychiatric hospital or something that would constitute dumping under their reading they don't see how that comports with everything they've said about the rigid view of stabilization that if the condition calls for it and the hospital can do it it's got to be done there and then. >> does idaho have any kind of a conscious exemption under state law? >> data does and there are protections i think that is a key point here your honor. the individual doctors are never required to perform an abortionn

from what i can tell but that doesn't extend to hospitals so in the case of catholic hospitals under the administration's reading those that adhere to the ethical and religious directives are required to perform abortion. >> i don't know if that is the line they draw between the doctors and religious institutions because they know. >> i'm surprised to hear you say idaho law permits everything the federal law requires. i'm trying to understand thatta because it seems to me if that is the case, then why couldn't emergencycy room physicians in idaho just ignore idaho law and follow the federal standard? if the state is doing with the federal law says is required,

it's okay by idaho, then fine we set idaho aside and do with the federal law says and we all go home. >> on the reading of course there is no conflict and so as doctors aren't having to make this choice of do i follow. >> they will be complying such that there is going to be no prosecution and no problem. >> they have to comply. >> i am asking if they comply, will they necessarily have satisfied the requirements of the idaho law because that's what you seem to say in response to the justice. so i just want to make clear if

that is the position of the state. >> the scope of the requirement is necessarily determined by idahoiz law in this case. >> you're saying if they follow then they will be following. i'd like for you to entertain the other possibility. you seem to be saying every situation in which the united states says here's a stabilization situation that the united states would say the person has to have an abortion, the physician would say we are following and abortion is required. i thought you said in response yes idaho law would also say that's the situation in which an abortion is allowed. if that's the case, then it seems to me there is no daylight, there's no conflict as you've said, but it's because idaho law is in full compliance with what the federal law is

saying. we are getting it wrong, you're saying, like that's not what he really mean. what we mean is whenever it's necessary to stabilize a patient who is experiencing deterioration is federal law requires. >> i think i understand the point that you're making and the best way that i can think of it is that the stabilization requirement requires medical judgment to determine what is the appropriate stabilizing treatment. how does a doctor exercise medical judgment? his training and experience andt reference to professional standards of care that are national but very with the standards. >> how about that's not just something you're sort of coming up with. asus said at the beginning, they tell the doctor how they are supposed to decided in this particular circumstance with reference to the medical standards of care concerning when a patient is deteriorating

in and emergency condition situation. if that's the standard, are you representing that that is exactly what idaho is saying so all the doctors need to do is follow and they will be fine under the idaho law? >> of course we are saying that the doctors need to comply with intolerance. the question is how do doctors comply. >> let me ask another question. i think i understand the point. you're saying it could actually be requiring more and the federal law has to make them do what idaho says. >> it's important that it codifies this presumption of the backdrop of state law. there are background principles here. >> i had thought that this case is about preemption and that the entirety of the preemption jurisprudence is the notion that the federal government in certain circumstances can make

policy pronouncements that differ from what the state mayer want or what anybody else may want and the supremacy clause says what the federal government as this takes precedent. so you've been saying over and over again idaho is a state and we have healthcare policy choices and we've made, we set a standard of care in the t situation. all that is true but the question is to what extent can the federal government say in this situation our standard is going to apply? that is what the government is saying and i don't understand how consistent with our jurisprudence you can be saying otherwise. >> if i can putut a fine point n it i don't think it'sio necessarily what can congress do but what did congress to do here. >> what did it too do here? >> it open to the act by saying the federal government shall not control the practice of medicine. and then it says state laws are not preempted. >> state laws are not preempted

to the extent, only to the extent of a direct conflict. now we are identifying a direct conflict. why is preemption not working there? >> based on the court's long-standing precedent it includes let me be very clear the text is very easy but the government has to overcome a lot of other hurdles. >> there's not a direct conflict because everything that we the federal government requires we allow, which the positions for human rights we've looked at idaho law and is as it prevents a lot of things in circumstances in which the federal government would require them, they disagree on the facts but anyway, you say no conflict because we actually are doing exactly, or allowing with the federal government allows andow you say no conflict because the federal government in the situation wanted the states to be able to set the standards.

i guess i don't understand how that is even conceivable given thiss standard, given the state that is coming into displaced the state prerogatives. >> ..

court's emtala's promise a simple profound know what comes emergency-room in need of urgency treatment should be denied necessary stabilizing care for this case is about about how the guarantee applies to pregnant women and medical crisis. in some tragic cases women suffer emergency complications that make continuing their pregnancy grave threat to their life for their help. the woman whose amniotic sac is ruptured prematurely for example needs immediate treatment to avoid the serious risk of infection that could cascade into sepsis and the risk of hysterectomy for a woman with severe preeclampsia can be at high-risk of kidney failure that could require lifelong dialysis. in cases like these where there's no other way to

stabilize the woman's medical condition prevent her from deteriorating the tax requires she be offered pregnancy termination is a necessary treatment and that's how this law has been understood and applied for decades. that usually poses no conflict by state money consisted of sharp restricted access to abortion after dobbs generally will allow exceptions to safeguard the mother's health. idaho makes termination of felony with years of imprisonment. i think i understood my friend today to ballot several times if there is daylight between >> and the necessary treatment that is required and the supreme court recognize the same thing wand specifically necessary to prevent exception instead of materially lower that had health exception. the situation on the ground in idaho is showing devastating consequences of that gap. today doctors in idaho are in an

impossible position. doctors either have to delay treatment and allow heron tennessee to materially deteriorate or air-lifting her out of her state to get emergency care that she needs. one hospital system inn idaho says that right now it'ss having to transfer pregnant women and medical crisis out of the state once every other week. that's unattainable and none of the petitioners interpretation fit with the text and they have tried to make the case be about the broader debate. in the narrow circumstances involving grave medical emergencies, idaho cannot criminalize the essential care requires, i welcome the court's questions. >> general, are you aware of any

other spending clause, legislation that that preempts criminal law? >> with respect to criminal law, justice thomas i'm'm not thinkig cases. page 46 that reflect times where the court has recognized preemptive clause legislation including situations where the funding restrictions apply to private parties so that include coventry butut i'm not immediaty recalling on how that would apply and now the normally when we have a -- a preemption case that's regulated party who is involved a in a suit, in this ce you're bringing an action against the state and the state

is not regulated, are there other examples of these types of suits. >> sure, there are numerous examples where the united states has sought to protect sovereign interest where a state has done what idaho has done here and opposed the law and i point to arizona versus united states as an example of that. united states versus washington. there are a number of case where is this court recognized that the federal government can protect interest in preemptive action. the court has long line of cases recognizing that the preemption principle in federal funding restrictions that apply to private parties too. >> even when the party that you're bringing the action against is not the regulated party? >> that's correct. because what idaho has done here is directly interfered with the ability of the regulated parties who have taken these funds, federal funds with conditions attached from o being able to comply with the federal law that governs their behavior. this is an essential part of the the federal government struck with hospitals in substantially investing in their hospital systems and what

the state has done is said, you through operation of state law no longer permitted and this narrow category of cases. >> but normally wouldn't it be the regulated party that would actually be asserting the preemption that you're talking about? >> certain i can imagine situations where a regulated party would assert preemption defense and say state law is preempted to the extent it prevent it is party from being able to comply with federal law. i'm not aware of any principal or precedent to suggest that that's the only way the government to protect itself. >> that's often the fact pattern of particular cases. >> i don't understand how your argument about preemption here squares with the theory of spending clause of congress' spending clause, the theory is congress can tell a state or any

other entity or person, look, here is some money or other thing of value, if you y want to accept it, fine, you have to accept certain conditions but how does congress' ability to do that authorize it to impose duties on another party that has not agreed to accept this money? >> there are no duties being imposed on idaho here. it's not required to provide emergency stabilizing treatment itself. the duties -- >> all right, not duties, how can you impose restrictions on what idaho can criminalize simply because hospitals in idaho have chosen to participate in medicare? i don't understand how this with the whole theory of the spending clause? >> i think it squares with the court's long line of precedence. >> i haven't found any square discussion of this particular issue, but i'm interested in the

theory, can you just explain how it works in theory? >> sure, so spending clause legislation is federal law, passed by both houses of congress, it's signed by the president, it qualifies as law within the meaningth of the supremacy. >> absolutely, absolutely. i think the supremacy clause dictates. >> i c will let you finish, go ahead. >> in a situation where congress has enacted law, it has full force and effect under the supremacy clause and what a state can't do is interpose law as direct obstacle to being able to fulfill federal funding conditions and justice alito -- >> no, absolutely enforceable against the hospital that choses to participate. >> well, i guess the argument then would be if the hospital is instead bound by the state law and the state law gets to control, it would mean the hospitals could anticipateit medicare at all and that's not the argument that the state is making here. wants is for hospitals to be able to accept medicare funding but not have to face the

restrictions that are attached to those funds as essential part of thehe bargain and there's no precedent to support that outcome.nd >> well, i just don't think -- i don't understand how -- how the owtheory works. but let me move onto something else. i'm going to try to restate your general theory and i want you to tell me if this is right. i think your argument is if a woman goes to an emergency room and she has a condition that requires an abortion in orderero eliminate quote, unquote, serious jeopardy to her, quote, unquote, health, the hospital mustal perform the abortion or transfer the woman to another hospital where that can be done, is that a fair statement of your argument?? >> sot it includes not just serious jeopardy to her health dysfunction of bodily organs and the other caveat i would make is that it would require pregnancy termination only in a circumstance where that's the only possible way to stabilize her and prevent cascade of

consequences. >> does this apply at any point in pregnancy? >> so the pregnancy complications that we have focused on generally occur in early pregnancy, often before the point of viability, there can be complications that happen after viability but there are the standard of care to deliver the baby if you need the pregnancy to end because it's causing the severe health consequences for mom. >> well, what if it occurs at a point where delivering the baby is not an option, you're out of third try muster but not an option to deliver the baby? >> trimester -- >> out of the first trimester. >> if you're contemplating where delivery is nottu an option, in that circumstance the only way to prevent grave risk is for the pregnancy to end and termination is the only option, yes, that's the required care that has to stabilization mandate. but critically in many of the cases the very same pregnancy complication means the fetus can't survive. there's no way to sustain the

pregnancy. >> let me ask you squarely the question that was discussed during mr. turner's argument, does the term health and tolerant just mean physical health or does it also include mental health. >> there can be grave mental health emergencies. >> why? >> it's because that wouldn't do anything to address the underlying green chemistry issue that isss causing mental health emergency in the first place. this is not ant mental health generally, this is treatmentnt y e, doctors in an emergency room and when a woman comes in with mental health emergency, instead the way you treat mental health emergency is to address what is happening in the brain. if you're having a psychotic episode you would administer antipsychotics. >> i really want a simple clear-cut answer to this question so going forward everybody will know what the

federal government's position is, does health mean physical health or does it also include mental health? >> with respect to what medical condition it can include grave mental health emergencies but let me be very hear about the position, that could never lead to pregnancy termination because it's not the accepted practice. >> does the term serious jeopardy in e11 little i mean an immediate serious risk or may risk of serious consequences at some future point suffice? >> the standard is defined in terms of whether you immediate immediate medical treatment. so the relevant question is in the absence of immediate medical treatment are you going to have this serious jeopardy to your health, dysfunction of your organs where bodily system start shutting down so it is urgency of acute care in an emergency room. >> so it has to be immediate? >> the relevant standard under the statute is in terms of whether the consequences will

occur without immediate treatment, yes, it's focused on the interaction between having some kind of urgent health crisis that takes you to emergency room in the first place and how proximate these consequences are likely to be. >> different things there awhether the person is, whether thee woman is in immediate jeopardy or whether the woman needs immediate jeopardy or eliminate jeopardy at a later point. so ieo understand your answer to be that the woman need not be in immediate jeopardy but if she doesn't get care right away, jeopardy at some future may suffice. >> so the statutory standard itself is focused on immediate health risk.tu it's looking at the possibility that if the woman doesn't get treatment then and there, what will happen, what will reasonable be expectedt to occur is that her organs could start shutting down or she might lose hefner tillty or however health consequences. it iser focused on the temp real link between immediate link for

treatment because congress was narrowly focused on this emergency acute medical situation. >> do the terms impairment to bodily functions were serious dysfunction of body organ or part refer only to permanent impairment or dysfunction or does it also refer to temporary impairment dysfunction? >> i thinknk it can also refer o temporary impairment but it's not easy to passer the two. for example, a lot of times a pregnant woman in dye stress, she might start suffering liver damage or kidney malfunction and you don't know whether that's going to be permanent ordo not. othe introduction that congress gave you need to stabilize to guard against serious health risks. >> general, i like to -- just to understand kind of t scope of your argument here on the supremacy clause and how it operates in your mind putting aside this case. could the federal government condition the receipt of funds

on hospitals that they comply with medical ethics rules provided for by the federal government, t medical malpractie regime and medical licensing regime such that effectively all state medical malpractice laws, all state medical licensing laws would be preempted? >> and you're imagining that this is regulatory action or congress has passed statute creating kind of federal malpractice regime? >> you call it. >> i have a broad view of congress' authority to enact statutes and so what i would want to assess in that situation whether congress is acting to one of its enumerated powers. >> spending clause. >> very likely congress could make those kind of judgments and attach conditions to receipt of hefederal funds. >> even if it covers all hospitals in the state and regulation of medicine into a federal function? >> there might be a point in which the court thinks that it's

encroaching on the state's prerogatives in the way of constitutional structure but i don't think we are anywhere close to that. >> do you see any bounds just in principle? >> i think the bounds would have to come from the court's case law and the court said gonzales versus oregon that, of course, the federal government has authority to comprehensibly regulate on health and safety including with respect to medical care and so i don't think that there's any principle of exclusive governance by the area by thehe state but obviousy i'm sure you can construct hypotheticals that leave the federal government entirely taking over a state function and maybe that would be subject to a rdifferent principle. >> medicare allow the federal government to enforce the dictates through penalties? >> that's correct. >> and also you can terminate the medicare agreements if a hospital violates intola in your view? >> generally, the hospital is given the opportunity toen come into compliance and develop a plan to make c sure there's no

future and tola violations, but that is a possibility. >> and there's also private right of action for violations to have the possibility of equitable relief as well? >> yes. scertainly monetary relief and possibly equitable relief as well. >> in this case, you brought an equitable cause of action, you didn't cite any statute to enforce mtola, one to have rules in equity traditionally at least you don't get an equitable relief that there's adequate remedy at law and as we just discussed, there's a pretty statute here seminole tribes say whenta you have a statute and ls of remedial options you don't get equitable relief thoughts. >> so let me say at the outset that the united states has long been recognized to have an action and equity and inherent action and equity to appeal to the courts of this -- of this

nation to protect its sovereign interest. >> proprietary interest. you mentionedve washington -- >> arizona versus the united states is another example of that. >> arizona -- sorry to interrupt. arizona was an immigration case and the border and washington was an attempt by a state to impose its worker compensation law on the federal government way different than others. i take those points and equity is all about proprietary interest and things like that. do we have that here? >> well, i think that the court, it want to make sure to make clear that there are a long line of cases that stand for this principle including case that is have addressed directly -- >> you really want to debs. that wasn't exactly our brightest moment >> i do think it reflects the history and tradition of the nation and recognizing that it's entirely appropriate for the united states to seek to protect its interest in this mannerze ad let me just say justice gorsuch this is an important issue to

the united states. it wasn't pressed below, it wasn't passed upon. >> i'm trying just trying to understand where it comes from, what is thein proprietary intert here. it's your money and how it's being spent and congress has given you h lots of tools. >> i think it also comes from the recognition under obstacle preemption principles that there are important functions to be served by having plan in place and idaho has directly interfered with hospitals to accept federal funds when they stand willing and able to comply with mandates and fulfill congress' desire to make sure that note matter where you are n this country if you have an urgent medical need and you go to er you can be stabilize. >> your friend on the other side said that your position would require religiously affiliated hospitals with emergency roomsms to perform abortions, was he right? >> , no my friend wasms wrong, there are federal conscious protections that w apply at the entity level to hospitals as well that keep provisions are in

the amendment and all of that depends on the residency program at a particular hospital. hhs said in 2008 rule making on conscious protections that it had never come across a hospital that had a blanket objection to providing life preserving and health preserving pregnancy termination care but if a hospital had that kind of objection and hhs recently informed me, they still have not orcome across that hospital, tht would be honored vis a have you hhs enforcement. >> can individual doctors in ann have acy room, do they -- >> yes,ue they are protected unr the church attempt. the hospital should have plans in place while ensuring appropriate staffing for emergency care. >> does that mean that there must be somebody in the geemergency room that can provie an abortion, what if there are

two doctors, three doctors and they all have a conscious exemption? >> , no in that circumstances mtola cannot override but my understanding that it's a matter of best practice because hospitals want to be able to care, they doncy things like ask doctors to articulate objections in advance so that they can be taken into account andd making staffing decisions and who is on call. >> are yo saying -- yeah, are you saying that there must be somebody available and on call in the hospital of that sort? >> the conditions to participation for medicare require hospitals to be appropriately staffed to provide emergency treatment, now in a situation where a hospital doesn't -- hasn't done that and it doesn't have anyone on hand who can provide care, maybe, all of the doctors called in sick that day and there's just literally no one in the emergency room or in this case if everyone had conscious objection then the hospital would not be able to provide the care but there are conditions of participation that are meant to ensure that there's good goodance of hospitals and

organization to account for situations. >> consequence of not being able provide the care would be what? >> in that circumstance they would likely be out of compliance that required them to be appropriately staffed, but if the question is could you force an individual doctor to step in over conscious objection, the answer is no and i want to be really clear about that. >> excuse me. the question is whether or not they must have available someone who can comply the procedures required by mtola and what would be the consequence if they didn't? would it be eventual termination of their participation in medicare? >> that's right. if the hospital was disobeying, i would imagine hhs through enforcement action work with that hospital to try to bring it into the compliance and the hospital leave itself in a position where it can never provide care, then it would terminate the medicare funding agreement. >> i thought you just saidd a minute ago, i'm sorry, i want to

quick clarify the colloquy, if the hospital hadai a conscious objection and therefore didn't provide certain care, that that wouldn't render it out of compliance, which is it? >> that's correct. the hospital with conscious objection and mto would not override that. >> i have a question about the hide amendment. mtolea would require abortion but would not permit federal funds to pay for it and you said in your brief mtola requires circumstances as well stabilizing treatment to be given, that federal funds don't cover, can you give an example of that? am i right about the hide amendment and can you give an example ofe that? >> yes, so you are right, it is common under mtoa where there's no funding available, i will give you example of medical patient that goes in and emergency medical condition means he needs a particular drug not covered by medicare benefits. still the hospital has to provide with stabilizing

treatment and give him the medication even though theat federal funding isn't going to pay for it and that also applies to people who are uninsured, who aren't covered by medicare in the first instance but the whole point of mtola is it doesn't matter your circumstances, it doesn't matter whether you can pay or not, it doesn't matter the particulars of your situation, this is a guaranty, you can get stabilizing treatment. i want to say there's any inconsistency and congress has recognized that these statutes address 3 issues, i'm thinking here of the provision in the affordable care act that was exclusively about abortion and their congress said nothing in then aca displaces hide and the other federal funding restrictions on abortion but also nothing in the aca displaces mtola requirement to stabilize and that shows two things, it shows first that congress recognized the stabilizing care can sometimeses be pregnancy termination and i think it also showed congress' recognition these statutes address their own distinct

spears. even if the woman is on the brink of death andk she goes to emergency room, still hospitals have no obligation under mtola to provide that care. >> so what about the colloquy i was having with your friend about what stabilizing treatment entails, let's imagine a situation where a woman is, i don't know, ten weeks and is told that if you carry this pregnancy to term it could have, you know, consequences for your health, but you just need to abort before like say 15 weeks something like that, so there's not immediately, so she's stable when she leaves the hospital but in idaho there's no place else that she can go at least until she's 15 weeks. what's the position then? >> she likely wouldn't have emergency medical condition in the first c place because the pdefinition is that without immediate treatment, you are reasonably -- you will

reasonably be expected to have serious discussion function of your organs or serious impairment of your bodily functions. in that situation where a womaning is somewhat high risk, maybe she -- she has certain complications where doctors can say there's some danger with continuing this pregnancy, i don't think that that creates the kind of emergencyco medical condition that mtola is aimed at. >> last question, this is about the spending clause issue. so it does seem odd and i think kind of what some other questions are getting at, it does seem odd that through side agreement between private entitt and the federal government, the private entity can get out of state law, right, so in another administration would it be possible andnd reliance on spending power for congress to say any hospital that takes these funds cannot perform abortions or any hospitals despite state law constitutional amendment requiring abortion to be available is that possible with gender reassignment surgery and you can imagine going back

and forth through spending clause litigation in ways that would be unusual? >> yes, i think congress has broad power. it doesn't mean that it's wholly unlimited. t obviously congress would be happy to act pursuant to enumerated power. it would have to comply with other constitutional limits so the law would have to be valid. the spending clause itself has built-in limits. >> congress does have broad

authority under the spending clause and, yes, if it satisfies the condition that is the spending clause requires, i think that that would be valid legislation and the courts has many context recognizing the legislation preempts. >> the answer is yes, okay. so how do we reconcile that with the statement in 1395 that nothing in this subchapter allows the federal officer to exercise any control over the practice of medicine? >> so at the outset i think if congress itself was doing it, then that provision isn't applicable by its own terms. >> don't think it informs our view and understanding of the statute in any way? >> well, i think in the event of some of direct conflict looking at mtola in particular and later in time and it's clearly more specific so it would control but this court itself and i'm thinking to have cms vaccine case where the litigants relied on the exact same provision of the medicare act section 1395

and this court said, no, that can't bear the weight that the litigants can placece on it or t would call into question all of the conditions of participation in medicare. >> do you agree that our clear statement rule with respect to spending clause legislation, clear statement rule are in play here? >> i think that here congress has spoken clearly with respect -- >> that's not the question. do you think those presumptions apply, forget about whether you can satisfy them. >> the requirement of clear notice under spending clause legislation, yes, i think that that does apply and providers have always understood their obligations under mt of course la. >> general, let me askou to respond to a couple of things petitioners and counsel said and just to give you the opportunity to respond. he suggested or said that you haven't identified in which something that mtola and idaho wouldn't allow.

the way that idaho statute operates it basically allows for a doctor to say, well, in my view, you know, this health threatening circumstance could lead to death and i'm going to do it. to the extent that doctors are able to do that, i guess, he's saying there's no preemption. is it true there isn't an operation of mtola has here? >> no, that's gravely mistaken on three levels, inconsistent with the actual text, inconsistent with medical reality and inconsistent with what is happening on the ground and this is a really important point so let mee try to unpack this. idaho law allows term neigh if it's necessary to prevent death, that's very narrow compared to what mtola requires with the category ofo harm to begin with.

in idaho doctors have to shut their eyes of everything except death where mtola, is she about to use fertility, is her uterus and the idea of necessity, under idaho law, you to conclude that death will necessarily result which is materially different and in the idaho supreme court recognized it. second, with respect to the medical reality here, there are numerous conditions that we are worried about where a doctor's immediate concern is not death, far remote possibility but health circumstances that mtola guards against.ea let me give you two examples, the first is rupture of the membranes and also ja15 to 17. what doctors explained there a woman comes with p prong, no way

fetus will survive and she doesn't have signs of infection. you can't think she'ser close to death. what you worry she might be infected but it's not about death, so i think that is one example where you can't to it and w finally just the practicen the ground. women in idaho today are not getting treatment. they are getting air-lifted out of the state to salt lake city and neighboring states where there are health exceptions in their laws because the doctors are facing mandatory minimum two years in prison, loss of their license, criminal prosecution, the doctors can't provide the care because until they 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,ounsel. justice thoma justice alito. >> we've now heard let's see an hour and a half of argument on this case and one potentially

very important phrase in mtola has hardly been mentioned. maybe it hasn't even been mentioned at all and that's mtola's reference to woman, quote, unquote unborn child. isn't that an add phrase to put in the statute that imposes a mandate to perform abortions. have you ever seen abortion statuteve that uses phrase unbon child? >> it's not in our phrase when you look at what congress was doing in 1989. there were well publicized cases where women werewe experiencing conditions, health and life were not inin danger but the fetus ws in grave distress. >> have you seen abortion statutes that use the phrase unborn child? doesn't that tell us something? >> it tells us that congress wanted to expand protection of pregnant women when they have a condition threatening the health

and welling of the unborn child. but doesn't that congress preexisting obligation to treat a women who herself is facing grave and health consequences. >> let's walk-through the provisions to have statute that are relevant to this issue regarding the status and the potential interest of an unborn under b1, if a woman goes toto a hospital with an emergeny tamedical condition, that's the phrase, 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 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 but performing abortion is -- you go so far 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 emergency medical health condition when her health is in danger. that stabilization obligation equally runs to her and makes clear that the hospital has to give her necessary stabilizing treatment and many in of the cases that you're thinking about there's no possible way to stabilize the unborn child becausebi the fetus is before viability that ininevitable that the pregnancy is going to be lost. doesn't what i read to you imposes a duty to the woman, certainly and also duty to the

child and it doesn't tell the hospital how it is adjudicate conflicts between those interests and it levers that to state law, maybe argument today has been dedicated to the proposition of the idaho law is a baded law and that may well be the case but a what you're askig us toy do is to construe the statute that was enacted back in the reagan administration and signed by a president reagan to mean that there's an obligation 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 oh women who are if danger of losing their own lives orwe their health then it could have redefine the statute so the fetus itself is medical condition but that's not how congress structured this. it putut the protection to expad and the duty still run to her and in a situation where her own life and health is gravely endangered then that in situation mtola is clear.

it says the hospital has to offer stabilizing treatment and she doesn't haveha to accept it. these are tragic circumstances and many women want to do what they can to save the pregnancy but the statute protects her and gives her that choice. >> the only way you try too get out of statutory interpretation that i just deposited is by focusing on the term individual and you say, aha, in the dictionary act individual is defined to exclude an unborn child or fetus, that's the only way you can try to get out of what i've just outlined. and isn't it true that dictionary definitions apply only if they are not in consistent with the statutory text and when you have a text that certainly you wouldn't dispute the fact that the hospital has duty to the unborn child where the woman wants to wants to have the pregnancy go

to term, protects the interest of the unborn child so inconsistent the definition and the dictionary act. >> not at all. the duty runs to the medical condition and, of course, congress want today protect her in situations where she's suffering some kind of emergency but the fetus might die that includes common things like a prolapse of the umbilical cord but the woman is not affected, hospitals otherwise wouldn't have an obligation to treat her and congress want today 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 an erroneous reading when she doesn't deserve stabilization. no one is saying that pickwick question be the state of idaho can declare it she cannot get this stabilizing treatment even if she's about to die for that is their theory of this case and

the statute. and it is wrong. >> this lack of conflict the opposing colleague said it doesn't exist. you mentioned a situation where it does. why don't juices sink delete states tell us exactly how you define where it exists question. >> the daylight as i see it is a censure dimension. they think doctors can only provide stabilizing care when that woman is facing death. and we think no, you can take into account things like kidney failure at the risk of a seizure at lifelong neurological impact space on that. >> they say the recent decision from the oregon court. you do not need death to be imminent or immediate i think is the word they used if i am not

mistaken for both the idaho supreme court said in that decision as there is no particular level of evidence e no% chance requirement. but what the court could not do is turn away from the language requiring the type of harm to exclusively be death. also the inherent concept of necessity requiring some degree of eminence it is true it's a subjective standard under idaho law the court made that clear. the idaho supreme court also said it isn't prosecutors are free to come in and have other medical experts second-guess doctor's decisions by saying maybe you do not subjectively think you needed it to prevent death. because it looked, her back had ruptured she is not yet infected. that's a kind of situation that leads to women being driven out of state, dumped on neighboring states by idaho and criminalizing the care of the essential care they nd.

>> just in the few months that this has been in place had to airlift six pregnant women to fake states whereas in the prior year they did one the entire year. so if mr. turner is right about what the state is trying to convey to hospitals about when they'll be prosecuted, why is this happening? >> i think that the reason this is the happening is because those doctors can look at the text of the statute itself, they can look at the idaho supreme court's decision which made clear, very clear, that this was a departure from prior idaho laws that track impala, and they can recognize that their livelihood is on the line, their medical license, their a ability to practice medicine, their freedom if they have to go to jail and serve one of these min women 32-year sentences of imprisonment -- minimum, even subjective with their medical judgment because as a matter of medical reality for many of these conditionses, it's not yet put a woman at the brink of death or net to prevent her death, yet they know that the

standard of care is to provide her or with term mission because she is just going to get worse and worse and worse if they wait it out. and the other important point about this is that, tragically in many of these cases, the pregnancy is lost. there's not any way to save that fetus. there is no medical way to sustain the pregnancy to give the fetus a chance. so in that situation what idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health consequences with no possible apply for the fetus. i stacks tragedy upon tragedy. >> it can't be -- transfer is the appropriate standard of care in idaho, but it can't be the right standard the of care to force somebody onto a helicopter. >> and it's entirely inconsistent with what congress was trying to do in the statute. you know, one of the primary motivators here was to prevent patient dumping. the idea was we don't want people to have to to go somewhere else to get their care. you go to the first emergency room in your state, and they

have to treat and stabilize you. but this effectively allows states to take any particular treatment they don't want their hospitals to provide and dump those patients out of state. and you can imagine what would happen if every state started to take this approach. >> a question on the spending clause questions that you've been asked. i mean, what would -- if you accepted some of these theories, what would the consequences of something like that be that we would have to worry about? >> i think that it would call into question any number of federal spending statutes that to if slide funds to private parties, and there are a bunch of them. there's the medicare system itself which is, of course, a major federal spending program, there are funds provided under title vi, under title ix, a lot of federal statutes that give funds to private parties and insist on conditions of compliance if with the federal funding restrictions. and if the court were to suddenly say that can't preempt contrary state law, i think it would seriously interfere with the ability of the federal government to get its benefit of the bargain in those spending programs. >> and you mentioned before this

question has never been a part of this case? if that's right. they did not make these argument in the lower court. i don't understand them to have pressed this argument a specifically, so i think the lower courts did not address it. i think the district court said in a footnote they briefly refer to it and it's essentially waived. >> thank you. >> justice kavanaugh? >> you've touched on what's happening on the ground and that's an important consideration and answer to the question of what's happening, but idaho is representing -- and i just want to get your answer on this -- that, as i count it, nine conditions that have been identified by government where impala would require that an abortion be available and abortion is available under idaho law, and that's in the reply brief. if now, are there other conditions, you've ruled out mental health, are there other

conditions that you would identify, or are you just saying that's not really happening on the ground? i think that's part of your answer, but i just want to get a fuller answer on that. >> it certainly isn't happening on the ground. these are the conditions that we're worried about, and i think the problem with my friend's theory is that you just can't square it with the text of the statute. the -- >> what with if they're -- i'm sorry, keep going. >> i just wanted to say they're not the ultimate authority on what the idaho law means. that's the idaho supreme court, and it has addressed this issue in the planned parenthood case, and i think it's significant that the idaho supreme court expressly contrasted this statute with ore statutes that contain health-preserving measures and recognized this was a total departure from that. the legislature wanted to focus exclusively and more narrowly. and so i think that essentially means the supreme court of idaho has already touched on this issue, and it's no wonder then that doctors who are facing these kinds of pregnancy complications where in they're

medical -- their medical judgment it's not necessary to prevent death yet, but the woman is going to suffer serious health consequences, their hands are tied, and they can't provide that care under the idaho law. >> what's on page 899 of the reply brief -- 89, if it were idaho law, would there be a problem still? >> if we had an authoritative idaho supreme court decision that said idaho law allows for termination in the circumstances where impala would require it, yes, of course, the conflict dose away. but with i can't imagine the court would say that because, of course, here -- >> that's not quite what they say, but i take your point on that. separate question, different category. i think one of the themes on the other side is that this law passed in 1986 was a very important law addressing a very important problem; namely, the problem where hospitals were turning away poor and uninsured patients who came in for emergency care, and the idea was that a can't happen. we can't allow hospitals in this country to turn away poor and

uninsured people in emergencies. but their theme is that the law was not designed contextually to deal with specific, with abortion or other specific kinds of care. and so they make a textual argument, but i think they also make a broader contextual argument about the whole idea of what was going on in 1986. and i don't think that's really come up too much, i want to make sure you respond to that. >> i appreciate having the chance to address that. at the outset,ting i don't think they can square that theory with the text of the statute which says in no uncertain terms, here's the guarantee. if you go to an e.r. in this country, they have to stabilize you. they have to give you such treatment as may be necessary within reasonable medical probability to insure that you don't deteriorate. and congress did not provide a list of all possible emergency medical conditions and all possible treatments, but it was very clear that congress set a baseline national standard of care to insure that the no matter where you live in this

country, you can't be declined service amid the urgent needs of your medical condition. it would be no different9 if the state had decided to ban epinephrine, the singular way to treat an allergic rereaction. congress tonight want that. if you have anaphylaxis and you go to an 'em r., heir going to give you epinephrine, and congress congressman a kateed that. and i don't -- mandated that. excluding pregnancy in the narrow but tragic circumstances where the only way to address the woman's condition is for the pregnancy to end. finish. >> thank you. >> justice barrett? >> general, i understand the primary if difference between impala and the idaho statute to be the health, that idaho focuses on the risk of life, but the federal government says that that impala -- well, impala says that the health -- am i right?

health and life? >> that's the principle deference, but i think it's also the difference between necessary to prevent death versus the health concerns would be reasonably expected to occur. i think that a builds in a little more space for doctors to take action. >> got it. is the federal government aware of any state other than idaho that has a law that does not take health into account? >> there are six other states that have severe abortion restrictions would want a health exception, so i think that those are the primary category of states we're concerned about here. >> thank you. >> i should make clear there are some pending judicial challenges in those states, so their laws are not always enforceable or in effect right now. >> besides texas, has the federal government, has the federal government brought suits similar to the one brought in idaho and texas in any of these other states? >> to be clear, texas was not -- >> right. >> they sued out, but we have brought affirmative litigation in other states, and i think this case has been on a course k and coo's law was particularly severe because it seemed to cover ectopic pregnancy and the

state conceded. that it was one of the most pressing can concerns because of that. >> thank you. >> justice jackson? >> general, petitioner relied pretty heavily on clear statement rule principles, and i wondered whether you might comment on my thought that those principles actually cut against them in this case? as a you said, congress set a baseline national standard the of care. it is said in no uncertain terms that the hospital must provide stabilizing care to people experiencing emergency medical conditions. if there was no, as you've said, you know, particular condition or particular treatment talked about a, carved out, etc. so if a clear statement is require required, wouldn't it be the requirement of exempting abortion? i mean, you know, justice alito has talked about some of the the

references to unborn child, but none of them read like an exemption that i would think a clear statement rule would require in a circumstance in which the baseline is this clear national standard of care. >> yes, i agree. i think that congress clearly was requiring stabilization and made that an unqualified mandate. it wasn't exempting particular conditions or particular type of treatments. and, you know, this court has said there's no canon of doughnut holes. that when you have a provision like that, the fact that you don't have a specific enumeration of one of its applications doesn't mean that you should read in some kind of implicit exception. >> so if we're looking for something clear, we would need to see, i would think, the clear statement that congress meant for you not to have to to provide an abortion pursuant to the mandate of providing stabilizing care. >> yes. and i think it's important to recognize that every relevant actor has understood the statute this way from the beginning. they understood congress' clear mandate here. this has been the agency's

position all along. we are not adopting a new position. that's reflected in our enforcement activity and in hhs' guidance and rule makings in this area. providers have understood it, even hospitals that a don't provide elective abortions. they have also provided life-sustaining and health-sustaining pregnancy termination consistent with impala. congress itself recognized it in the affordable care act, and i don't think there's any reasonable argument that people misunderstood what congress was doing in the statute. >> thank you. >> thank you, counsel. rebuttal, mr. turner? >> thank you, your honors. 'em pal la takes state -- impala are takes state law practice of medicine standard as it finds them. as justice gorsuch noted, that's what section 1395 says. and in fact, in the vaccine mandate case that was referenced, that that's what the solicitor general's office told this court when it said that 1395 does not require, does not allow federal officials to

dictate particular treatments for particular cases. that's exactly what they are trying to do here with impala. it's also confirmed by subdivision f. that codifies a presumption against preemption. and so to justice jackson's colloquy at the end, that is the point. you do presume that state law continues to operate alongside impala. you don't presume the opposite. it's supported by cms operations manual which is hs' rosetta stone of impala enforcement. it tells doctors, it tells cm if s enforcement agents on the ground that you consider what is available by referencing what is within the scope of that doctor's license. that is exactly what that we are saying. it is also specifically directed in 42cfr4889.11 which requires hospitals to assure that their medical staff comply with state law. that's a federal regulation that

directs hospitals to require their hospital staff to comply with state law. it's also confirmed by the 115,000 enforcement instances that totally lack any theory that would support any, any case history that would support the administration's reading. she says this has always been understood to be the case. well, you'd think that we would find a single example where state law was overridden by impala, and there isn't one. finally, the text. the text qualifies impala's stabilization requirement requirement by the staff that is available. we know nurses can't perform open heart surgery, and we know janitors can't draw blood. it's not just a plain mandate devoid of reference to state law. and we know the word available even in a common usage incorporates state law. for example, you heard just the other day that when considering whether a bed is available for homeless people, it has both a physical sense and is a legal

sense. and whether cigarettes or alcohol are available to people in idaho, there's both a physical question and a legal question. opioids are available in hospitals. they are on the shelf. they are physically there, but there's a legal question that comes into play too. it is the same with abortions. in response to the chief justice's question on conscience, the general said both hospitals and doctors are exempt from impala's supposed abortion mandate. we're relieved to hear that, but i think that it highlights the utter inconsistency of the administration's reading. so if impala's stabilization requirement is general enough not to override extra-textual protections like conscience protections, then it cannot be so specific and include a requirement that is in direct conflict with state law. those two don't jibe. this court does not lightly find

a direct conflict. congress must speak clearly. it has not done so here. the administration's position ultimately is untethered from any limiting principle. i think we heard that. there's just no way to limit this to abortion. and there's no way to limit it to idaho. there are 22 states with abortion laws on the books. this isn't going to end with idaho, it's not going to end with the six states that the general mentioned because all of the states that have abortion regulations twine the health and the emergency exception narrower than impala does. so this question's going to come up in state after state after state. it's also not limited to physical health. i know the general says there's no circumstance in which a health, a mental health condition would require stabilization with an abortion. but now just fighting with the american psychiatric association. the very standard that she's setting up to say controls the impala a inquiry. that's to not consistent. that's not consistent.

and it isn't limited to impala. justice thomas, alito, justice gorsuch, you all a pointed out the major spending clause implications that are at play here. and i disagree that we didn't brief this. pages 20-21 of our opening brief we recognize that this is hugely concerning if the federal government can pay private actors to violate state law. not just any state law, state criminal lawses. the implications of that are vast. it leaves the federal government unbound by numerated powers. and i think the general admitted that. the court doesn't have to answer that question on our reading, it does on >> c-span's washington journal live forum involving you to discuss the latest issues in government, politics and public policy, from washington, d.c. to across the country. coming up friday morning we are getting your reaction to tonight's presidential debate between president joe biden and former president donald trump.

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