president biden's 2025 budget request. before a house veterans affairs subcommittee. you can watch it live on c-span three, our mobile video apps or online at c-span.org . with bio and contact information with every house and member of the congress. important information on congressional committees, the president's cabinet, federal agencies and state governors, the congressional directory caused 3295 $32.95. every purchase helps support our nonprofit operations. scan the code on the right. order your copy today. on wednesday, federal

officials testify on the ongoing investigation into the collapse of baltimore's francis scott key bridge. watch the house infrastructure committee live at 10 a.m. eastern on c-span, our mobile video apps or online at c- span.org . c-span is your unfiltered view of government. we are funded by the celebrate companies and more. >> the u.s. supreme court heard oral arguments in a se on whether federal law preempts in

idaho ban on nearly all abortions. that near van was initiated in august of 2022 ter the u.s. supreme court overturning of roe versus wade. the biden administration filed suit against ido, arguing that that law can conflicts with the 1986 federal statute that requires emergency care including abortions at hospits participating in medicare. the justices have through june to issue a ruling. the oral argument is just under two hours. >> we will hear argument this morng case 23 726. the consolidating case. mr. turner. >> thank you,. chief justice. when congre amended the medicare act in 1986, itput on a century foundation of state law. states have always been responsible for licensing daca source doctors. works preciselbeuse the states regulate the practice of mecine and nothing requires

doctors to igno e scope of their license and offer medica treatments that violate state law. three statutory provisions make this clear. first, section 1395, the medicare ox opening provision. forbids the federal ment from controlling the practice of medicine that is the role of safety relation. sectn,subdivision f. third, the stabilization prisn is limited tolable treatments which depes the scope of the hospital staff medical license. legal treatments are not available treatments. atth court on prevention of state regulations, combined that with the need for clear and spending clause conditions and the administration's reading becomes. the administration's misreading also lacks any limiting prinpl if e.r. doctors can perform whatever treatmt ey determine it's appropriate, then doctors can

ignore not onlye abortion laws for state regulations and opioid use. inrmed consent requirement. that turns that presumption on its head and leaves emergency rooms unregulated under ate law. it is unsurprising that no court has endorsed such an expansive view. everyone understands that licensing laws limit medical practice. that is why a nurse is t available to perform open heart surgery no matter the need, no matterr knowledge. the answer does not change just because we are talking about abortion. the court should reject the administration's unlimited reading and reverse the judgment. i welcome, of course, questions. >> normally when we have preemption case, there is some relationshipbeeen the parties. is the state regulated by

the federal government or is the state engaged in some contractual relationship? >> yes, your honor. in this case, idaho, fo example has no state hospitals that participate with emergency oms. there is not even a part of that relationship. the paiebeing regulated here are hospitals and door i think your question is tting at the armstrong issue. we think that is a significant question. it was not part of the question preste we think the brief raises significant questions and deals with that argument well but the questi esented here is one of direct conflict between idaho's law and on that question, we do not think it is hard at all. going at direct conflict, if you consider the express limitation within the state

of availability -- >> before we do thatcan i step and get your understanding ofthe ate? you made some representations as to w you see it working. let me tellu what i think and you can tellme whether you agree, disagree, or otherwise. i think thatthere are two things that are plain on the face of this statute. one is at it is about th present provision of stabilizing ca for people who are experiencinggency medical conditions. that is one thing i think the e is doing. i also think it is operating to displace the prerogatives of hospitals or stor whomever wi respect to that narrow slice of the unerse. one very minor part or small part of the overall healthcare provision. wh at means is that whena hospital wants to only prov

stabilizing care in emergencies for who can pay for it, for example. says no, i am sorry. you have to ste anyone who is periencing an emergency medical condition. when a hospital wants to provide treatments to people who are experiencing only certain kinds of emergency conditions. they say no, here's the list of conditions in you have to provide stabilizing care for thospele. similarly, the state says look, it is job to govern of healthcare in our state and we say that only certain kinds of healthcare can be given to people who are experiencing emergency medical coitns. we do not want whatever treatment we will only certain kinds of treatmen they say no. we are directing that as a tter of federal law, when someone presentswi an emergency condition, they have assessed and the hospital stdo whatever is in its capacity to stabilize em is that your understanding of

the statut >> partially, your honor. we agree that doesimpose a federal stabilization ement but the question is what is the content of that stabilization requirement? you have to reference state law. >> i thk at you decide is important because when you can see that imposes a stabilization requirement, it is the statute, the federal government interfering, if you will in the steshealthcare choices. a statute that says it is not all the states way. ere are federal requirements here. there is a requirento stabilize emergency patients. and you agrewi that. >> purpose was narrowed to bridge this gap that existed. just because it is state and

healthcare, the federal government has nothing to say about it the federal government has plenty to say about in the statute. you arrit. now there is a question of what is the content of this stabiliziorequirement and as far as i understood your opening remarks, this is le to the states but if i am just lookinatthe statute, tells you what the content of the stabilization requirement is. it is ovide such medica treatment to assure within asable probability that no material deterioration is likely to occur if the person were transferred or didn't get care. it tells you very clearly it is an object of standard. is it is a standard that early has reference to medical preference.

here is the ntt of the standard. you have tostilize. what is that mean? it means tovide the treatment necessary to assure what is in reasonable medical probability that no deterioration occurs. >> let me respond in two ways. first, the objective standard that you set forth inthat others understanding is contrary. they say it is a totally objective stda and atever treatment the doctor determines -- >> i think that's not true. i think that you guys can argue about this yourself and as i understand the solicito general's brief and we will see what says, it's not up to every individual doctor. this is stdard that is objective, and corporate medical standards of ca. >> the more fundamental point is the definition that you quoted of stabilizing care. in the operativprovision, also sexually anexpensively qualified by that icis within the staffi cilities available at a hospital. >> that is right.

it says within the staffing facilities available at the hospital. if yolo at that language, it is absolutely clear at that is not a reference to what state law involves. the staff and facilities available. if you don't vestaff available to provide the medil re than i guess you cannot provide the medical care. if you don't have the cities available to provide the medical care, you cannot provide the medical care or transferhato take place for the good of the tient. the availability -- it is the availability of staff an facilities. do you have the right doctors? do you have enough doctors? do you have the right facilities? is iter r the patient to transfer them to the hospital a few miles away? >> you are exactly right. you have the right doctors? how do you swer that question without licensing laws? >> you can't do that. that is the initl point that i was trying to make isthat the federal mandate is to

ove stabilizing care for emergency conditions regardless of any otr directive that the state has or e hospital has. we prevent that care from beg provided. that is the work of the statute. >> that is not even hhs's conclusion. in the state operations manual which on page 36 of the brief, it definedenes what makes a staff person available unr the statute. >> does it say that they e not available if state law does not allow this procedure? >> gets as they are available to the extent they aroffering to the extent of their medical license. that is our argument. they want to draw it far more rr. we agree, that is the component. there is also a legal component. >> counsel,thproblem we are having right now is u are putting prmpon on its head. the purpose of prmpon is to say that if the state passes a

law that violates federal w, the state law is no longer effective. there is no state linsg law that would permit the state to say dot eat diabetics with insulin. eat them only with pills. the doctor lookata juvenile diabetic and says without insulin, they are going to get seriouy l and eight likelihood, and i do not know what that means under idaho law, we will get that shortly. we believe this is a better treatment. federal law would say we cannot do that. medically deceptive standards re require the treatment of diabetics with insun. medically accepted obligation of doctors when they have women withceain conditions that

may not result in death but more than likely will result in very serious medical conditions, including blindness for some. the loss of organs, chronic chronic blood stkes. idaho is saying unless a door can say in good faith that this peon is likely as opposed to serious illness, they cannot perform the abortion. i do not know your arment about state licensing law becae is is what this law does. it tells states your licensing laws cannot take out objective medical conditions that could save a person from seriou injury or death. >> i think there artwo crucial responses to your point. let me begin with the

preemption point. bdivision f and 1395 are telling hhs, the federal government, and courts just the opposite. >> know. it is saying atyou cannot preempt him if there is direct conflict. if objected medical care requires you to treat women who present the potential of serious medical complications. the abortion is the only thing that can prevent that, you have to do it. idaho lasa the doctor has to determinnobut there is a serious medicacondition but that the person will di that is a hu difference. >> we agree that there is daylight between how the administrati reading and tala and what idaho's life permits. we agree that there is a controversy. >> there is more than a controversy. what you are sangto us is

that if it does not ve preemptive force, not just idaho. has a saving condition r abortions when it threatens a woman's life. what you are saying is that state in the nation, and there are some right now at don't even have that as an exception to their abortion laws. what you are saying is that there is no federal law on the from saying even if a womaate will die, you cannot perform an abortion. >> i know of no state that does not include a life-saving exception. >> some of been debating it. your theory of this case leads to that conclusion. >> i think our point is that. >> could hear your answer?

>> and e administration's reliance on a standard like best article evidence or a national norm, i think that is ve fraud. what it really is sangis the text, itself does not addresd what stabilizing treatment is required. you go outside the text to professional stanthat are flowing out there that might day today and that boils down to a question between conflict of what says and what idaho law says. >> actually, can you clarify becae am not sure i understand. looking at isfrom a broader perspective, it emto me that it says you must provide whatever treatment you have the capacity, meaning stf and facility, to provide and stabilize patients whar experiencing emergency medical conditions. idaho law seems to say that you cannot pridthat treatment

unless doing so is necessary to prevent a patient's death. why is that not a direct conflict? u ve must in a ceain situation, that is what the federal government is saying. you cannot if it involves abortion, says idaho. >> i think that exame really highlights why. a nurse might be ailable. the nurse might even think she knows how and under the provision, the administration's reading would sa her into action, put her into the operating room and open open the patient up. >> idaho would say no. that is still a conflict. les y the administration's position is that nurse can do it. are you suggestingth federal law would not preempt state la that says no, she can't. >> whether federal law could do that is different question of whether does do that. i think the answer is clear that it esn't.

it's like the organ case with the controlled substances act, this cot noted that the provisions they're rely upon and assume a medical profession being regulated by state police powers. a four-page statute. for every conceivable medical treatment. >> it did leave that the medical community. what congress was not going to addrs ery treatment for every condition but it said you dowh is needed to ensure non- deterioration. i guess the question here is do you concedth with respect to certain medical conditions, and aboronis the standard of care? . the standard of care -- i shouldsain idaho, there is a

feaving exception for certain abortions and that is the standard of care. the stanrdof care is necessarily set and determined by. >> i think you have to coed with respect to certain medical nditions, abortion is the standard of care because your own statute as interpreted by yo n courts acknowledges that when a condition gets d enough such that e woman's life is in peril, the doctors are supposed to give abortions. the reason that that is true is that respect to certain, rare and important conditions and rcumstances, abortion is the accepted medical standard of care. is that not right? >> yes. that was my point that eris a life-saving exception under idaho law. >> the question is that also, the accepted standard of care, rather than the woman's life being. the woman's health is in peril.

let's take all these cases being rare but within these rare cases, there is a significant number erthe woman, her life is not t she's going to lose her reproductive organs. she's going to lose the ability to have children in the future unss an abortion takes place. that is the category of cases in which emtala says my gosh, of course the abortion is necessary sure that no material deterioration occurs. idaho says sorry, no abortion here and the result is that these patients are now helicoptered out of ate. >> it is a very difficult situation. these situations, nobody is arguing that they don't raise tough dil questions that implicate theological and moral questions. idaho, like 22 other states and even congress and emtala nice

th there are two patients to considering thciumstances. the two patient scenario is tough when you have the competing interests. >> that would be a good response if federal law did not ta position on what you characterize as toh question. federal law does take a position on the question. ys that you do not have to wait until the person is on the verge of death. if the woman is going to lose is enough to trigger thisduty on part of the hospital to stabilize the patient and th way to stabilize patients in these circumstances, all doagree. idaho law does not require that doctors wait until the patient is on the verge of death. there is no medical certainty requirement. >> i'm sorry, answer the following question. these are hypotheticals that are true. hold on one second. u can tell me whether idaho's exception -- and this will go ck to the point that even if ahlaw fully mpes with

federal law. you have a pregnant woman who is early into her send trimester at 16 weeks. goes to the e.r. because she felt gush of fluid leave her body. she was diagnosed with. the doctors believe that a medical intervention to terminate her nancy is needed to reduce the real medical ssibility of experiencing sepsis, and uncontrolled hemorrhage from the broken sack. this story of a real woman. e was discharged in florida because the fetus still had fetal. the hospalsaid she is not likely to die but there are going to be serious medical competitions. the doctors refused to treat her because eycould not say that she would die.

she was horrified, went home. the nextda she bled, she passed out, painfully taken to the hospital. there she received an abortion because she was about to die. what you are telling us -- is that a case in which idaho, the day before would have said is okay to have an abortion? >> idaho idaho's life-saving exception, a doctor could in odfaith medical jume determine -- >> i am asking you. the florida doctor said i nnot say that she is going to die. if you are doctor says cannot without a medical certainty say that she's going to die but i do know that she's going to lead to death if we don't have an abortion but she's not leavinyeso i am not sure. >> the doctor does not need to have medical certainty. >> answer yes or no. he cannot say that eris likely to. he can say there is likely to

be a very serious medical condition like a hysterectomy. let megoto another one. imagine a patient who es to the e.r. at 14 eks. again, abortion is. she was in and out of th hospital up to 27 weeks. this particular patient,ey had to deliver her baby. the baby died. shhad a hysterectomy and she can no longer have children. all right. you are telling me that the doct uld not have done the abortion earlier? >> again, it goes back to whether a doct n in good faith medical judgment -- >> that it's a life for the doctor to risk when idaho law changed to make the issue whether she is going to die or not or whether she have a serious medicacondition.

correct? >> it is very case-by-case. >> i am kind of shocked. i thought your own expert had said below that these kinds of cases were d and you are now saying that they e not? i am not saying that. >> she is asking with this be covered or not. i know it was my understanding that the legislators witnesses said that these would be covered. >> those doctors said if they were exercising their medical judgment, theyd in good faith determine that life- saving life-saving ca s necessary. that is my point. >> some doctors could not. some doctors might reach a contrary conclusion is what she's asking you. if he reached the conclusion that the leslure's doctors did, would they be prosecuted under idaho law? >> no. if they reached the conclusion that dr. reynolds, dr. whit-- >> what if the prosecutor thought differently? what if the prosecutor but i

don't think any can draw that conclusion, i'm going to put on my expert. >> that is the nature of discretion and it may reltin a case -- >> has idaho put out any kind of guidance? >> what is covered by the and what is not? >> the e regulations but i think the guiding star isthe planned parenthood versus austin case which is a lengthy treatment by the idaho suprem court of this law. it made clear, the court made clear that there is no medical certainty requirement. you do no to wait for the mother to cing death. >> thank you, coun >> what happens if a dispute arises with respect to whether or not the ctor was within the confines of idaho w or was not? is the doctor subjected to revi medical authority?

exactly how isthat evaluated? it is an obvious concern individual for exception and if we are having a debate about, is that covered by your submission th thing in idaho law prohibs providing with emtala. who makes the decision of whether or nosothing is in or out? >> i imagine there are two ways that the law can be enforced. the board of method medicine s licensing oversight over a doctor. idaho supreme court made clear that the dto medical judgment is not going to be judged based on an jeive standard what a reasonable doctor would do. at is not the standard. the second way would be -- >> what is the standard >> the doctors good it medical judgment which is subjective. >> not subject to review by any mecal global board? if there's a complainagainst the doctor and he has his own

particular standard -- >> wie ido supreme court has said is that you may consider another doctors opinion only on the question of wasn't a pretextual medical judgment not a go-faith one. >> justice thomas? >> i would think that the concepofgood faith medical judgntmust take into account so jective standards but it would lee certain amount of leeway for an individual doctor. that wahoi interpreted what the state supreme court said. you have been presend here today with very quick summaries of cases and asked to provide a snap judgment about what would be approprie in those particular cases. honestly, i think you ve finally been given an oprtity to answer some of the hypotheticals but uld you

agree with me that a medical doctor who is an expe in this fid were asked what ulyou do? in these particular circumstances which i am not going umerate, 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 wi tt? >> absolutely. a cog does not say that abortion is the standard of care. they say the expected management is often times the appropriate standard of care. these are difficult queson that turn on the facts that on the ground between the doctor as he is assessing them with his medical judgment but he's also necessarily constrained by idaho law just like every other area that prtices medicine. state law combines doctor judgment in some ways. >> there is a difference

between stabilizing a person who presents a serious medical condition requiring stabilization than a person who presents with a condition quoting ido'words "where there is a -- poses a great risk of death to the pregnant woman." >> we agree. >> the ll be some men who present serious medical condition that thferal law would reque be treated who will not be treated under idaho law. >> i disagree with th. idaho hospitals are treating these women. they are not treating these women with abortions. >> thatismy pot. they will present with a rious medical condition that doctors in good faith can't say

will prest ath but will present potential loss of fe potential loss of an organ or serious medical complications for the woman,they cannot perform those abortions. >>ifthat hypothetical exists, and i do not know a condition that is so certain to result in the loss of an gan but also so certain not to transpire with death. if that condition exists, yes. idahladoes say that abortions are. >>let me stop you there because l your legal theories rely on us holding that federal law does not require and cannot preempt ate law on these issues. when i asked you the question if a state defines likelihood of death more stringently than

idaho does, you would say that there is no federal law that woulpribit them from doing that. >> i would say that emtala does not contain a standard of -- >> there is no standard of care. in your briefing, u made these positioned anyoalmost argued now that there position thatferal law requires stabilizing treatmt and not equal trtmt at pate missions, which is a positi you took in your brief. yoseed to have backed off from it here. you seem to agree that federal w quires some stabilizing condition whether or not you provide it to other patients but have countless ie that say that hhs has pre-2009. this is not an unprecedented position. that hhs, in countless situations cited hospitals for

discharging patients who required an abortion as treatment. congress discussed that toc in the affordable care act and explicitly said that nothing in thaffordable care act should be construed to relieve any healthcare provider from dividing emergencseices as required by state or federal la medicapriders have told us that for decades, they have undersodfrom federal law and state law to require abortions for stiling conditions for people presenting serious medical risk. the cases of lower courts saying you have to provide abortion. this is not a post-dobbs unprecedented position by the government. >> it sotely is. in fonote 2, two spreadsheets that contain 115,000 of

enforcement instances. the administraon >> this was not much of a question but there is hhs guidance and at least three cases in which was invoked. the fact that hhs dinot have to do it muchbefore does not make their position unprecedented. my point is not. there are few instances and not just on the issue of abortion but on any instance where hhs has come in and told a hospal that you have to provide a treatment that is to state law. >> we are back tothat. okay. thk you. >> mr. tuerpracticing medicine is hard but there are standards of care, aren't there? >> yes. >> one of the standards of care with respect to abortion that in certn tragic

circumstances, as you, yourself, your own states law acknowledges where won's life is and abortion is the appropriate standard of care, isthat right? >> yes. >> emtala goes further. the appropriate standard of care cannot only be about protecting a woman's life, it al s to be about protecting a woman's health. that is what emtala says, doesn't >> it defines emergency medical condition with a broader set of trgering conditions but the key question is what is the stabilization requirement? that is qualifd the by the availability of. >> the stabilization requirement is written in terms making sure that a transfer would not result in e material deterioration as to the emergency condition. thg about has to be a death store, right? >> i think that is right. there is a standard of care with respect to that on abortions too.

if a woman is going to lose her reproductive organs unless she has an oron, which happens in certain tragic circumstances, a doctor is supposedtorovide an abortion. is that right? >> doesnoobtain any standard of care. do you dispute that there is a medical standardofcare that when a woman is about to lose her reproductive organs unless e s an abortion that the doctors will not say that an abortion is e propriate standard of care in that situation? >> what i dispute is th there is a national uniform standard of care that requires an approach. it has drawn the line on a difficult question. it is inconceivabltome to think that congress answered this very front question in four pages of the de. >> congress said as to any conditn the world, if an emergency patient comes in, you are supposed to provide the emergency care that will ensure that th tient does not se

a material deterioration in their health. that is what congress id the abortion exceptionalism is on the part of the state saying we are gointo accept that with respt every other condition but not with respect to abortion. will not comply ththe standard of care that doctors have accepted. abortion is not exceptional. there are numerous cases wher states intervene and say the anrd of care for this condition is x not y. in w jersey, a doctor cannot stabizchronic pain with more than a five day supplyof opioids. in pennsylvania, seven. in other states, there is no limit. their reading of emtala is that those get wiped out and you pose a tial standard. there are numerous other instances wherstes are coming in and saying in our state, the practice of medicine mu conform to the standard. idaho has done with oron, opioids, marijuana use,

countless expl. >> in your theory, although the supreme court has narrowed the reach of your statute, your theory would apply even if it had not. it would apply to of topic prnaies, it would apply even if there was not a death exception. all of your eory would apply to no matter what idaho did, wouldn't it? >> yeah, i think the aneris emtala does not reach to that but there are other backgrounds and principles that chief justice >> -- your theory is that emtala preempts benefit. a state tomorrow could say even if death around the corner, a state tomorr uld say even if there is an uptopic pregnancy that that is still a choice of the state and emtala has nothing to say about it. >> that understanding is a humble one with respect to the role of states. it is the primary care providers for their citizens.

>> it may be too humble r women's health. thank you. >> i just want to understand some ofyour responses and efforts to respond to some of the questions that we have heard today. as i read your briefs, idaho thin at in cases of up topic pregnancies, for exame, that an abortion is accepted. >> correct. >> the example of someone who is noimdiately going to die but may at some point in the future, that would be acceptable. >> it goes back to the good faith medical standard but yes. the doctor cannot determine in good faith that death is going to afflict that woman -- >> it does not matter whether it happens tomorrow, next week, or a month om now.

>> there is no requirement. this notion of delayed care is not consistent with the idaho supreme court's reading of the statute and what the statute says. >> e good faith, as i re the idaho supreme court, that controls. that is the end of it. >> what do we do with emtala fition of individual to include both the woman and as the statute says, the unborn child? >> yeah. we are not saying that emtala prohibits abortions. for exampl d telephone yo stabilizing treatment may involve abortions consistent with what that state law allows its doctors to perform. i think our point wi the unborn chd that it would be very strange thing for congress to expressly en emtala to require care for unborn children. it's not just when the mother

periencing the active labor. the definition of e ergency medical condition requires care when thchild, itself, has an emergency medical condition regardless of what is going on with the mother. the strange thing for congress to have regard for the unborn child but also be mandating termination of unborn chdren. >> justice kavanaugh? >> i want tofocus on the actual dispute as it exists now, today between the governments fuel, emtala, and idaho law. idaho law has changed since the rict court injunction with the supreme court and with a clarifying change by the idaho legislate. to the reply brief, says that for eachofthe conditions identified by the general where under their view of emtala , and aboronmust be available. you say in the reply brief that

idaho law allows an abortion in eachofthose circumstances and you go through them on pages eighand nine. is there any condition that you are aware of where the solicitor general says emtala requires that an abortion be available in an emergency circumstance foido law as currently stated does not. >> the administration contains atthere is such conditio. >> what is your view? >>myview is that yes. i'm going to restreference footnote 5. the mental health condition situation. the administration says that that is not on the tae, that is not a scenario where abortion is the only stabilizing care requir. i am not sure where that construct of only stabilizin care comes from because in their viewit the doctors determination that controls, nois imposed on the

requirement that the as it may, the american psychiatric association -- i am taking general on her offer and footnote 5 th there are not organizations, the american association in a 2023 position par ys that abortions are imperative for mental health conditions. that sounds like a necessity to me. i do not know how a woman who present at seven months pregnant in an idaho emergency room and says i am experiencing severe depressi om this pregnancy. i am having suicidal ideation from carrngthis pregnancy forth. that wouldn't under the adnistrations reading be the only stabilizing care? >>you think the ninth circuit panel, when it said every circumstcedescribed by the administrations declarations involvedinlife-threatening circumstances under which idaho law would loan abortion. >>we agree with that because the conditions idenfi in

the affidavits were all conditions atwould fit under the lifesaving exception. that is telling because es doctors when they are put under thcould not come up with any of these rcstances. they identified other ones but wh the government does not want to talk about isthe mental health exception. i just n'know how you can read -- >> is there really hethan the mental health, which we venot had a lot of briefing abou there any other condition identified by the solicitor general where you think idaho law would not allow a physician in his or hegood faith judgment to perform an emergency abortion? >> not in eir affidavits. they maintain that when you compare the definition of what an emgey medical conditio is, it is broader than the definition of the lifesaving exception of idaho law. >> that isat they say but then when we gedown to e

actual conditions that are listed, the examples. some of those you have said in your brief that each of the conditions identified by the government, idaho law allows emergency abortion. >> what isat mean for what we are deciding? if idaho law allows and abortion in each of the ergency circumstances but the government has emtala mandating the appeal out. >> i will say two . the practical first response is that idaho is under an injunction that includes of incredibly broad requirement that preempts -- i understand that. there should not be an injuncti, take your point on the. >> my second pot is i do not know w is court can make the determinatioonwhether there are any real-world conditions without first answering the interpretation

question what requirement actually requires? at has to be addressed and it has tobeaddressed in the only because -- >> i was picking up on your reply brief. is actually no real daylight in terms of condition. i am picking up what you said. >> i unnd. >> thank you. >> i gus i don't understand why we have toaddress the stabilizing condition if what you say isthat nobody has been able entify a conflict and on the mental healthing, says i just picked it up check footnote 5. idaho bears that a student accointo its terms, would turn emergency rooms into by allowing pregnancy termination for mental health coerns. if that is the only space th you can identify where idaho would and abortion and emtala

would require one and the government is saying no, that is not so , what is the confli >> of course we think we n whether you find no faua conflict -- >> why are you here? >> hold on a send. you are here because there is an injuncti ecluding you from enforcing your law. if your law can fully operate because emtala does not curb idaho's authority to enforce its law. >> thnction says that idaho's law is preempted in broad range of ciumances >> as it conflicts with emtala. >> it is much broader than that. this was based on the injunction by the administration to avoid an emergency medical condition. idaho's law cannot even operate when a doctor determines that the condition might need to be

avoided. that is far broader than the emergency medical finish and in stabiln requirement under emtala because the stabilization requirenis only triggered when there has bedetermination. >> i would like to hear the general's response to that but t me k you another thing about the ment health consideration. i can derstand idaho's point that a mental health exceptn would be far broader than idaho law and have the potential to expand the availability of abortion far beyond whatido law permits. the stabilization requiremen only exists up until er. it is hard for me to see how with a mental health condition, that could not be stabilized before needing to transfer, right?

and so the s tabilizati than a government's rigid view of stabilizatio ich is, if an emergency medical condition cas for an abortion, it has to be provid ght there and benefit is avaab in this very limited sense. the stabilization continuuyo are talking about, i agree. it is built into emtala. >> the statute says until transf. >> the ontransfer position kic in e hospitals and able to stabilizthcondition. the patient presents at the hospital and that hospalhas the capability, the availability to stile the condition in the case of mental health, i invite general to come appear and tell you i got it all wrong and the mother at i described would not need to receive stabilization in the circumstand instead would be transferred to a psychiatric hospital or something and that would not constidumping under the adg, i how that conforms with everhi they have said about the rigid view of stabilization. they condition calls for it in

the hospital can do it, it has to be done there and then. ere are federal protections as well d at is a key point, your honor. the administration told this court in the fda case that individual doctors are never required to perform an abortion from what i can tell but that does not extend to hospitals. in the case of catholic hospitals -- there hundreds of them treating billions of patients evy year, catholic hospitals who faithfully adhere to the ethical and religious directivesarnow required to perform. >> is that because the federal exemption applies? >> i don't know why they say that is the line that they draw between individual doctors d ligious institutions. it needs to coboth. >> thank you. >> justice jackson? >> i am surprised to hear you say that idaho law rmits

requires. that the federal law i am trying to understand that.d seems to me that if that is the case, then why could not emergey om physicians in idaho igno aho law and follow the federal standard? if the state is doing exactly what the federal law says is required, it is okay by idaho, then we set idaho aside and do what the federal law says and we all go home. >> there is no nflict. do i follow -- >>yo representation on behalf of idaho is if an emerroom physician in idaho follows emtala, in terms of when an ortion is required to stabilize patient, they will be complying with idaho law such that there will be prosecution and no problem. >> they have to comply with idaho law to comply with em >> no.

no. i am asking you, if they comply with emtala, will they necessarily have satisfied the requirements of idaho law? if that is what yoseem to say in response to justice kavanaugh and in response to juice barrett -- i just want to make clear if that is the id >> the scope of em -- stabilization requirement is determined by ido w in this case. >> you are saying if follow idaho law then they will be following emtala law. >> i would ke for you to entertain the her possibility. you seem to be saying every situation in which the ed states says here is a e stabilization situation that the united states would say the -- the physician would say we are follinemtala and ut abortion is required.

i t you said in response to justice kavanayes, idaho law would also say th siation in which abortion is allowed. if atis the case, then it seems to me this no daylight. there is no conflict like you said but it is because idaho law is in full compliance with what the federal law is saying. we are getting it wrong, you are saying. what we mean is, whever it is necessary to stabilize a patient who is experiencing deterioration as fedel law requires. >> no. i think i understand the point you are making and the best way that i can think of it, your honor, is the emtala stabilizatioreirement requires medical stment to determine what is the appropriate stabilizing treatment. does a ct recognize -- his training, perhaps in nce to national-- >> how about -- that is not

just something you are coming up with. as justice kagan said at the beginning, emtala tells the doctor how he is supposed to decide in this particular circumstance, with reference to the medical standards of concerning when a patient is deteriorating in an emergency condition situation. if that is the astandard in emtala, are you represti that is exactly what idaho is saying so that all the docts need to do is follow emtala and they will be fine under idaho law? >> of course weare saying that idaho doctors needtocomply with emtala. the question is , how do doctors comply with emtala? think i understand your point. yoare saying idaho could actually be requiring more and the federal law has to make them do what idaho says. >> it is impoanthat emtala itself difies this presumption of a backdrop of

state law. >> let me explorthat with you for just a second. i have thought that th was about preemption and that the entirety of our preemption's are the notion that thfederal governme certain circumstances, can make policy pronouncementsthat differ from what the state may want or what anybody else may want and the acy clause says that wh the federal government says takes prt. you have been saying over and over again, idaho is a state and we havealthcare policy choices. we ha set a standard of care. althat is true but the question is, to what extent can the federal government say no, in this situation, our standard is going to apy? that is what the government is saying and i don't understand how consisntwithout preemption you could be saying otheis >> if i could put a finer point on that. i don't think the question is

necessarily what can congress do buwh did congress do >> what did soyou do here? >> ened the medicare act by saying the fedel government shall not control practices of medicine. in emtala itself, it says state laws are not eempted. >> state laws are not prmpd to the extent of its own preempted of a direct conflict here, we are identifying a direct conflict. why is preemption not working rn there? >> whethethe is a conflict includes clear statement cannons that we think we we on the text. the text to usis very clear. the government has got to overcome a loother' hurdles. >> there is not a direct nfct between everything we require, we allow, which is a physician for human rights who looked atido law and says it prevents a loof things the federal government would e require them.

they disagree wiu on the facts. anyway, you say noconflict because we are doing exactly what, or allowing, what the federal government allows. say no conflict because the federal governmentin this situation wanted stat be able to set the standard. i guess i don't understand how th is even conceivable, given this standard, given this statute that is coming in to ple state prerogatives. >> i can convince you on the second, let a third. >> is e condition of this requiring congre seek clearly and unequivocally th it is imposing an abortion ate? that is not here in the statute. >> what do you mean? th say provide whatever is necessary to stabilize. you are saying they would provide whatever is necessary, including abortion? th is the only way that is taken into account of? >> no. when we and look at the

phrase available, the administraonis saying, they are adding this tag but says consistent with state law. we are saying no. the presumption against preemption, what congress would need to do if it wanted to preempt this very traditional state law is toput a tag, regardless of state law and that is missing. >> thank you. >> thank you, counsel. >> general? >> mr. chief justice and may it please the court. emtala's promise is simple but profound no one who comes to anergency room in need of urge eatment should be denied necessary stabilizing care. this case is about hothat am guarantee applies to pregnant women in medical crisis. in some tragic case men suffer emergency complications that mas ntinuing their pregnancy a grave threat to eir lives or help.

a woman whose amniotic sac has ruptur ematurely, for example, needs immediate treatment to avoia serious risk of infection th could cascade into sepsis and the risk of his direct me. woman withsere preeclampsia can face a high risk of kiey failure that could require lifelong dialys. in patients like these where there is no otheway to stabilize the woman's medical condition d event her from deteriorating, emtala's plntt requires that she be offered a pregnancy terminatio as a necessary treatment and that is how this law has been unrstood and applied for decades. that usually seno conflict with state law. even states that ha sharply restricted access to aboron generally allow exceptions to safeguard e ther's health but idaho makes termination if only punishable by years of imprisonme. i think i understood today to acknowledge sevel times that there is daylight between the standard and the ceary stabling the treatment that emtala woulrequire . the

idaho suemcourt recognize the same thing when a specifically contracted the necessary prevent death exception and said it s materially narrower than a prior idaho lathat had a health exception that ck emtala . the situation on the grnd in idaho is showing the devastating coeqnces of that gap. today, doctors in idaho and women in idaho are in an impossible position. they woman comes to emergency room facing a grave re to her health that she is not yet ci death, doctors either have to delay treatment and allow her condition to materily deteriorate or they air litter out of the state to get the emergency care she needs. one hospital system in idaho says that right now, it is having to transfer pregnant women in medical crisis out of the state once every other week. that is untenable and emtala does not denounce it. ne of the interpretation sit with the text and we have tried to make this case beabout the t broader debate for access to abortion in cases pregnancy but this is not that at all.

the ban on abortion is enforceable in all of its applications. in the narrow circumstances involving grave medical emgeies, idaho cannot penalize the essential care that emtala requires . welcome the court's question >> general, are you aware of any other legislation that preempts criminal law? >> i am t immediately thinking of relevant cases. we have a whole side of cases in our brief at page 46 at reflect times when the court has recognized the preemptive force of spending clause legislation including in situations where the fuin restrictions apply to private parties. that could include the coventryd health case, for example. edward is another example of this but i'm t immediately recalling -- recalling criminal law. >> now, normally when we have a

preemption case, it is a regulated party who is involved in the sudan they use it as a primitive defense, for example. in this case, you are bringing and action against the ste and the state is not regulad. are there other examples of these types? >> sure. there are numerous expl where the united states has set toitsoveiginterest. the law conflicts. high point arizona versus unitedstes as anti-example of. united states versus washington. there are a number of cases where this recognize that the federal government can protect its interest in istype of preemption action and as i mentioned before, the court has a long line of cases recognizing that the preemption principle applies in th context of federal funding restrictions that apply to private paietoo.

>> even when the party thatyou are bringing the action against is not the regulated party? >> that is rrt. what idaho has done here is directly interfere with the ability of the related pay to have taken these funds with conditions attached to from being able to complyth the federal law that governs the av behavior. this is an essential part of the bargain that the federal gornment struck with hospitals in substantially investing e hospital system. what the state has done has said that you, through the erion of state law, are no longer permittetocomply with this fundamental stabilization reirent in emtala in this narrow category of cases. >> normally, wouldn't it be the regulad party that would be asserting the preempti at you are tainabout? >> certainly i can imagine situations where a regulated party would assert a preemption event and to say that state law itlf is prevented from being able to comply with federal law but i am not aware of any but i am not aware of any cot's case log to suggest that is the only y for the government to prect itself.

>> i think that is ofn the fact pattern of particular cases. >> i don't understand your gunt about preemption here, sqres with the theory spending clause. the theory is, congress n tell a state or any entity or person, here is money or anothethg of value. if you want to accept it, nd. you have to accept certain conditions. with congress's ability to do that, authorize it to impose duties on another party that has not agreed accept this money? >> there are no duties being impod idaho here. it is not required to provida stabilizing treatment itself. >> not duties. can you impose restrictions on what idaho can criminale

simply because hospitals in idaho have chosen to participate in medicare? i don't understand how this squares with the oltheory of the spending laws. >>it squares with the court's long line of presidents. >> i have looked atthose cases. i don't have any squareti discussion on this issue but i am interested in the theory. can you explain how it works in theory? >> sure. >>th is passed by both houses of congre. it is signed by the president. alifies as law. >> absote. >> i think the supremacy clause diat the relevant principle ' here. in a situiowhere congress has enacted law, it has full force and effect under the dependency clause. a state can't interpose its own law as a direct obstacle to beg able to fulfill the federal funding position. >> eyare enforceable against e spitals that choose to

participate. >> i guess the gument then would be that if a hospital would be that if a hospital law gets to control, it would anthat the hospitals cannot participate in medicare atal what it wants is for a hospit to be able to accept medicare nding but not have to base the reriions that are attached to those funds. there s no precedent to support that outcome. >> i don'derstand how the theory works. lememove on to something else. i amgog to try to restate your general eo and i want you to tell me if this is right. i think your gunt is, if a woman goes to an emgency room and she has a condition that requires an abortion in order toelinate, quote, unquote serious jeopardy to her quote, unote, health, the hospital must perform the abortion or transfer the woman to another

hospital where that can be done. is that a true statement? >> includes not just serious jeopardy to her house bualso serious dysfunction of her bodily organs. the other caveat i would make is that it would require pregnancy termination only in the circumstan. >> does this apply at any point in pregnancy? >> the prnay complications that we have focused on generally incur in early pregnancy, before the point of viability. they are e andard of care to deliver the baby. >>what if itoccurs at a point where liring the baby is not an ti or they are in the thirtrester where it is not an option to dever the baby? i'm sorry, first trimeste >> if you are contemplating

where delivery is not an option, it is the only way to prevent grave risk to the won's health, for the pregnancy to end. th the required care that emtala s for a stabilization mandate. >> the very same pregnancy complication the fetus can't provide, regardless. there will not be any way to sustain the pregnancy. >> let me ask you square the eson discussed during turner's argument. does the term health in emtala mean just physical al or does it also include mental health? >> there can be grave mental health emergencies but emtala could never require a pregnancy termination. >> why? >> that would not do anything to attract the underlined brain emtry issue. this is not about mental health. this is about treatment bye. doctors in an emergency room and when a woman comes in with

so great mental health emergency and she happens to pregnant, it would be ethical to do that. instead, the way yotreat mental health emergencies is to attract what is happening in the brain. if you're having a psychotic episode, you adminier antipsychotic. >> i want a simple clear-cut answer. everybody will know what the federal government's position is. does health mean lyphysical health or does it also include mental health? >> with respect to it quifs as an emergency medical condition,itcan include grave mental health emergencies. wi me be very clear about our position. that could never lead to pregnancy termination. >> does the term serious jeopardy in e11 mean an immediate serious risk or may sk serious consequences at some future point? >> the standard is defined as whether you need emergency medical treatment.

the relevant question is, in the absence of medical treatment, will you have this serious jeopardytoyour health, dysfunction to your organs ur bodily system starts shutting down? >> it has to be immediate. >> the relevant statute explains in terms of whether the consequences will occur without immediate treatmen it is focused on the teraction between having some sort of urgent health crisis that takes you to the emergency room in the first place and and hoproximate the consequences are likely to be. >> those are two different things there, whetr e woman is in immediate jeopardy or in whether the woman needs immediate care in order eliminate jeopardy at a later point. >> i understand your answer that the woman need not be in the media jeopardy but if she does t care right away, jeopardy at some future point may suffice? >> the stuty standard itself is focused on immediate

health. it is g at the possibility that if a woman does not get treatment then and the, what will happen is that her organs could start shutting down or she might lose her fertility. it is focused on is link between the immediate need for treatment, whic reflective of the fact that congress has narrowly focused on this emergency acute medical situation. >> to the terms impairment to bodily functions or serious dysfunction of any bodi organ permanent impairment or dysfunction? does that referred to temporary impairment or unction? >> i thinit can also refer to temporpairment but i'm not sure it is easy to parse the two. a pregnant woman in distress might start fferg for anyou don't know whether that . will be permanent or not.

the instruction of co gave in emtala is you need to stabilize the very serious health risk. >> to understand the scope of your argument on the supremacy clause, putting aside this case, foot -- case, the federal government comply with medical ethics rules provided for by the federal government, medical malpractice regi, such that effectively all state medical malpractice ws, all state medical licensing laws would be preempted? >> you imagine that this is regulatory action where congress has passed the statute to create a federal malpractice regime >> i have a broad view of ress's authority. what i want to assess in this situation is whether congress is acting pursuant to one of its enumerated powers.

>> i think the velikely, congress could make those dgments and attach conditions to the federal fund. >> does it cover all hospitals e in the state and effectively transforms regulation of medicine into a federal function? >> thert be a point in where this court thinat is encroaching on the state's erogatives. i don't think we are anywhere to that. >> i think the bounds have to from discourse case law. there are cases like gonzalez versus oregon where the federal government has -- i don't k there is any principle with exclusive ments. obviously i'm sure you could conshypothetical that the federal government is taking over a state function and ybe different principle. to >> emtala and medicare allow the federal gont to

through civil monetary ates penalties? >> you can terminate medicare , agreements that the spital view? es, emtala, in your >> yes. generally, the hospital is ven the plan to ensure there wot be future emtala violations. it would be extremely sanctioned to medicare fundingn but that is a possibility. >> there is ala private right of action for emtala violations? of equitable relief as well? ty >> yes. ainly monetary relief and possibly profitable relief well. >> in this case, you u brought equitable cause of action but you did not any statute to enforce emtala. one of the rules equity, traditionally, at least , is you don't get equitable relief if there is an adeqte remedy at law. we just discussed thstatute here. when you have a reticulated

statute and lots of remedial options, you don't get equitable relief. >>me say at the outset that thed states has long been recognized to ha action and equity to appeal to the court of this nation, to >> arizona was an immigration case >> washington was an attempt tod impose the compensation laws on the federal government different from others. i talk about proprietary interest in things like that. do we have that here? >> nt to make sure to make clear that there are a long line of cases that stem from this principle including cases that have be--

>> you really want -- that was not our brightest moment. history and recognizing that it is entirely appropfor the united states to seek tive interest in this manner. this is a really important -- >> we have not iefed it at all. >> i am yi to understand where comes from. wh the proprietary interest? >> it is yoney and how it is being spent. congress is giving you lots tools. >> it also comes from the recognition that there are important functions by having the medicare program place and idaho has directly spitals to accept these ity of federal funds when they stan willing and able to comply with emtala's mandate and to make re that no matter where you are in this country if you have an urgent medical ne and you go to an e.r., you n be

stabilized. >> your friend on the other side said that your position would require religiou affiliated hospitals with emergency rooms to pe abortions. was he right? >> no. my friend was wrong. there are thin at apply at the hospital levels as well the key provisions are in the amendments and all of that depends on e residency program at the particular hoit. a 2008 rulemaking said 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 has that kind of objectd hhs recently informed me they have not come across that hospital, it would honor the enforcement ability. >> that applies atthe entity level? can indivialdoctors in the emergency room -- do they have a -- >> they are protected under the church amendment,cipally.

they do not override either set nscience protections. conscious objection to d a providing that, emtala -- the hospital should have plans in place to honor the individual doctors ous objection while assuring the appropriate staffing foemgency care. >> does that mean there must be somebody in the emergency room can provide an abortion? what if they were two doctors, three doctors and they all have a conscious exemption? >> in that circumstance, emtala d not override those understanding is it would matter because hospitals want to be able to provide emergency care. they do things like ask doctors to articulatethr objections in advance so that that can be taken into account in making staffing ons and to his on-cl. >> are you saying that there must bebody available and on-call in the hospital? >> the conditions of participation for medicare require hospitals to be properly staffed to provide emergency treatment. a situation where hospital

has not done that and it does not have anyone on hand who can provide care -- maybe all the doctors called in sick th day and there was literally no on in the emergency room. in this case, if everyone had a conscious obn, the hospital would not be able to provide the care but there are conditions rticipation that are meant to ensure there is a governance of hospital and organizaon >> when you say the consequence of them not beg able to provide the care, that would be what? i think they would likely be out of ance with the conditions of participation at required them to be appropriately staffed but if the question uld you force an individual doctor to stepping over the conscious objection, the answer is no. i want to be very clear about that. >> the question is etr or not they must have available someone who comply the procedures required by emla what would be the consequence if they't ? would it be eventualicipation of their termination a medical care? >> that is right. if