two hours. chief justice roberts: we will hear argument this morning in case 23-726, moyle versus united ates, and the consolidated case. mr. turner. mr. turner: thank you,r.hief justice, and may it please the court: when congssmended the medicare act in 1986, it put emtala on a nties' old foundation of state law. states have always bee responsible for licensing doctors and setting the scope of their professional practice. indeed, emtala wksrecisely because states regulate the practice of medicine. and nothing in emtala requires doctors to ignore the scope of their license and offer medical treatments that violate state law. three statutory provisions make

th car. first, section 1395, the medicare act's opening provision, forbids theedal government from controlling the practice of medicine. that's the role of state reguti. second, subdivision (f) in emtala codifs statutory presumption against preemption of staical regulations. and, third, emtala's stabilization provision is mid to available treatments, which depends on the scope o the hospital staff's medical license. illegal treatments are not trtmts. add in thicot's own presumption against preemption of state regulations, combine that wh e need for clear and unambiguous spending clause conditions, and the mistration's reading becomes wholly untenable. the administration'mieading also lacks any limiting principle. if er doctors caorm whatever treatment they determine aropriate, then doctors can ignore not only ste ortion laws but also state regulations on opioid use and informed consent requirements. that turns the presumption

against preemption oithead and leaves emergency rooms unregulated under state law. it's surprising that no court has endorsed such an expansive vi of emtala, and until dobbs, nor had hhs. everyone understandsha licensing lawsim medical practice. that'why a nurse isn't available to perform open-heart surgery, no matter the need, no matter her knowledge. the answer doesn't an just because we're talking about abortion. the court should reject the administration's unlimited reading of emtala and reverse e district court's judgment. justice thomas: the -- normally, when we have a preemptse, there's some relationship between the parties. t state being regulated by the federal government under tala, or is the state in -- engaged in some sort of quasi-contractual relationship?

mr. turner: yes, your honor. in this case, the state, idaho, for example, has no state hoits that participate in -- with the emergency rooms in emtala. d so, in this case, there isn't even a quasi-ratnship. the parties being regulated by emtala here are hospaland doctors. and i think uruestion is getting at the armstrong issue, and wehi that is a significant question. wn't part of the question presented. we think the indiana amicus brief raises significant questions and deals with that argument wl. but the question pseed here is one of direct conflict between idaho's law anemla, and on that question, we don't think it's hard at all. and, your honors, going to tha direct conflict, i think, if you consider the express limitation within the statute of availabili justice jackson: well, before we do that, can i just step back and get your understanding of the statute? you made some representations as to how you s it working.

and so let me tell you what i think, and then you can tell me otherwise.u agree, disagree, or i think that there are two things that are plain, pretty plain, on the -- the face of this statute. one is that emtala is about the provision of stabilizing care for peop w are experiencing emergey dical conditions. that's one thing i think the statute is doing. d i also think that it is operating to displace the prerogatives of hoits or states or whomever with respect to that fairlyw slice of the healthcare universe. this idea of emergency medical servic ilike one very minor part or small part of -- of th sort of overall healthcare -- ovision of healthcare. so what that means is th wn a hospital wantso ly provide stabilizinca in emergencies for people who can pay for it, for example, emtala says, no,

i'm sorry, you have to sta anyone who's experiencing an emgency medical condition, or when a hospital wants to provide stabilizing treatments to people who are experiennly certain kinds of emergency conditions, emtala says, no, here'thlist of conditions and you have to provide stabg care for those people. mirly, if a state says, look, it's our job to govern all of healthcare in our state and we say that only certain kinds of healthcare can be to people who are experiencing emergency medicaitions, we don't want whatever treatment, we want only certain kinds of treatment, emtala says, no, we are directing that as a matter of federal law, when someone presents with an emergency coition, they have to be assessed and the hospital must do whatever is in its capacity to stabilize them. is that your understanding of thute? mr. turner: partially, your honor. we agree that emtala does impose a del stabilization

requirement, but the question here is what is the content of attabilization requirement, and for that, you have to reference state law. justice jackson: ok. well -- justice kagan: if i could just -- i mea ihink what you just said is important be whe you conce at emtala imposes a stabilization requirement, it is, this statute, the federal government interfering, ifou will, in a state's healthcare choices. so emtala is on its face a statute that says it's not all the state's way. there are federal requirements here. there is a requirement to stabilize emergency patients. and you agree with that? mr. turner: yeah, justice kagan, we agree that emtala -- emta's purpose was narrow to bridge this gap that existed in some states -- justice kagan: ok. so, i mean -- mr. turner: -- and theaire to treat. justice kagan: -- we can just take off the table this idea th, you know, just because it's a state and it's healthcare, that the federal government hasotng to say about it. the federal governme h plenty to say about it in this statute. now, you're right, now there's a question of what's the contt

of this stabilization quement. and as far as i understood your opening remarks, you saywe, this is left to thstes. but, if i'm just looking at the statute, the statute tells you what the content of the stabiliziorequirement is. it's to provide such medil treatment as may be necessary to assure within reasonable probability that no material deterioration ofheondition is likely to occur if the person were transfeedr didn't get care. so it tells you very clearly it's an objective standard. it's basically it -- you know, 's a standard that clearly has reference to accepted medical practice, not just whatever one ctor happens to think. but it's here is the content of the standard. you have to stabilize. what does that mean? it means to pridthe treatment necessary to assure within reasonable medical probability that no material deterioration occurs.

mr. turner: yeah, let me respond in two way first, the objective standard that you set forth tren that understanding is contrary to the administration's ew. they say it is a totally subjective sndd and whatever treatment a doctor determines is appropriate, that's -- justice gan: i think that that's not true. i mean, i think you guys can argue rself. but, as i understandhe solicitor general's brief -- and we'll see what the solicitor general says -buthe solicitor general says it's not up to every individual doctor. this is a standard that is objective that incorporates accepted medical standards of care. mr. turner: well, and the more fundenl point is the definition that you quoted of stabilizing caren e operivposition -- provision in (b)(1) is also textually plitly qualified by that which is within the staff d facilities available at a hospital. so tn we come -- justice jackson: yes. and that's what -- justice kagan: th's quite right. that's quite right. it says within the staff and facilities aille at the hospital. and if you just lookt at language, i mean, it's absolutelyle that that's not

a reference to what state law invoes the staff and facilities available. if you don't have staff available to provide the medical re, then i guess you can't provide the medical care. if you don't have the facilities available to provide the medical care, then you can't provide the medical re a transfer has to take place for the good of the patient. mr. tuerthis is a really important -- justice kagan: but this is -- th -- the availability here, because -- it's the availability of staff and facilities. it's, you know, do you have the right doctors? do you have enough doctors? do you have the right facilities? or is it btefor the patient to transfer them to the hospital a few miles away? mr. turner: you're exactly right. doouave the right doctors? how do you answer that questio except by reference to state licensing laws? justice jackson: but you absolutely can't do that. i mean,'s sort of the initial point that i was trying to make, which is that the federal mandate is to provide stabilcare for emergency conditions, regardless of any other directive that the state s or the hospital has that

would prevent that care om being provided. that's -- that's the work of the statute. mr. turner: justice jackson, that's not even hhs's conclusion in the state operations manual, whicth proffered on page 36 of their brief, it defines what makes a staff person available under the statute, and they say it has to -- stice sotomayor: counsel, i -- i -- this whole issue -- justice jackson: and does it say that they're not available if state law doesn't -- doesn't allow this procedure? mr. turner: it says they are available to the extent they are operating within the scope of their medical license. and ats our argument. they want to now draw it far more narrow and look only at phical availability. we agree that's a component, but ere's also a legal availability component here too. justice sotomayor:el, the problem we're having right now is that you're sort of putting preemption on its head. thwhole purpose of preemption is to say that if the at passes a law that violates federal law, theta law is no longer effective.

so there is no state licensing law atould permit you -- permit the state to say don't eat diabetics with insulin. treat them only with pills, metformin. and a doctor looks at a juvenile diabetic and says, without insulin, they' going to get seriously ill and the likelihood -- and i don't know what that meanunr idaho law, we'll get tohat shortly -- because, i don't know, this -- we believe this is a better treatment. mr. turner: yeah. justice sotomayor:al law would say, you can't do that. medically accepted -- objective medicallacpted standards of care require the treatment of diabicwith insulin. the medically accepted obligation of doctors when they have women with cert conditions that manoresult in death but more than likely will resulery serious

medical conditions, including blindness for some, for others, the loss of organs, for some chronic blood strokes, idaho is saying, unless the doctor can say in good faith that this person's death is likely,s opposed to serious illness, they can't perform the abortion. so i don't know your argument about state licensing law because this is what this law does. it tells states, your licensing laws can't take out objti medical conditions that could save a person from serious injury or death. mr. turner: yeah, k there are two crucial responses to your point. let me binith the preemption point. subdivision (f) and section 1395

acally are telling hhs, the federal government, and courts just the opposite, that you don't -- justice sotomayor: no, it's saying you can'prmpt unless there's a direct conflict. if objective medical care requires you to treat women who e who present the potential of serious medical complicatns and the abortion is the only thing that can prevent that, you have to do it. mr. turner: no- justice sotomayor: idaho law says the doctor has to determine not thathe's merely a serious medical condition but that the person will die. mr. turner: yeah. justice sotomayor: that's a huge difference, counsel. . turner: your honor, we agree that the -- there is daylit between how the administration is reading emtala anwh idaho's defense of life act permits. we agree that there's a controversy here. but what i'm sayings at -- justice sotomayor: no, no, no, nono, there's more than a controversy because whato're saying to us is, if emtala

doesn't have preemptive force noju idaho, it has a saving condition for abortions when it threena woman's life. mrturner: well, when the -- justice sotomayor: but wha you're saying ishano state in the nation -- and there are some right now that don't even have that as an exceptioto their anti-abortion laws. what you are saying is that there is no federal law on the book that prohibits any stat from saying, even if a woman will die, you can't perform an abortion. mr. turner: uronor, i know of no state that does not include a life-saving exception. but, secondly, the government -- justice sotomayor: some have beenebing it at least, and if find one -- but your theory of this case leads to that conclusion. mr. turner: i think our point is that emtala doesn't address that very -- justice sotomayor: does your theory -- chief juicroberts: could i -- could i hear your answer? mr. turner: yeah in -- the administration's

reliance on a standard like best inical evidence or some national norm, i think that's very fraught because what it really is saying is the text itself doesn't address what stabilizing eaent is required. you go outside theexto professional standards that are floating out there that might change day to day, andha really boils down to a question between a conflict between wt the acog says and what idaho law says, and that's not -- chief justice roberts: thank you. thank you, counsel. justice jackson: ay, c i just clarify? because i'm not sure i understand. you know, sort of looking at this from a broader perspective, it seems to me that emtala says you must provide whatever treatment you have the capacit aning staff and facilities, to provide to stabizeatients who are experiencing emergency medical conditions. idaho law seems to say you cannot provide that treatment unless doing so is necessary to prevent a patient's death to the extent the treatment involves abortion. why is that t direct conflict?

yoha "you must" in a certain situation, that's what the federal government is saying, and "you cannot if it involves abortion" says idaho. mr. turner: i think the nurse example reallyigights the reason why, because a nurse might be available. the nurse may be -- may even think she knows how to, and under the flat must provision in emtala, the administratio's reading would say call her into action, put her into t operating room, and open the justice jackson: right. and -- mr. turner: but that is not justice jacksoand idaho -- justice kagan: well, that -- justice jackson: -- would say no, that'still a conflict. so, fine, let's say the -- let's e administration's position is that nurse can do it. are you suggesting that federal law would not take precedence, would not preempt a state law atays no, she can't? mr. turner: well, whether federal law could do that is a different question than whether emtala here does do th. and i think the answer is clear that it doesn't. i mean, it's like the gonzales v. oregon, case where the controlled substances act, you know, this court noted that that

was t provisions there rely upon and -- and assume a medical profession being regulated by state police powers. that's the same witemla. emtala is a four-page statute. congress didn't attempt to address the standards of care for every conceivable medical treatment in -- justice kagan: it -- it definitely didn't address the standa car it did leave that to the medical community. it said, you know, the -- congress was not going to address every treatment for every condition, but it said you do what is needetossure non-deterioration. so i guess theueion here is, do you concede that with respect ctain medical conditions, an abortion is the standard of care? mr. turner: no, because a standard of care under idaho -- well, i should say, in idaho, there is a lifesaving exception for certain abortions, and that is the staof care. and the standard of care is necessarily set and determined state -- justice kagan: well, i think you

have to concede th wh respect to certain medical conditions abortion t standard of care because your own statute, as interpreted by your own court acknowledges that wn condition gets bad enough such that the woman's life is in peril, then the -- the -- the doctors are supposed to give abortions. mr. turner: d justice kagan: and the reason that that's true is that with respect to certain rarbu extremely obviously important conditions and circumstances, abortion is the accepted medical standard of care. isn't that right? mr. turner: yes, and tt that was my point, that there is a lifesaving exception under idaho law. now the question here is -- justice ga now -- now the question is, is it also the accepted standard of care when, rather than the woman's life being in peril, the woman's health is in peril? so let's take -- you know, all of these cases are rare, but

within these rare cases, there's a significant number where the mais -- her life is not in peril, but she's going le her reproductive organs, she's going to lose the abilitto have children in the future, unless an abortion takes place. now that's the cago of cases in which emtalsa, my gosh, of course,hebortion is necessary to assure that no matealeterioration occurs. anyeidaho says, sorry, no abortion here. and the result is that these patients are now helicoptered out of state. mr. turner: yeah. your honor, the hypothetalou raise is a very ffult situation, and these situations, i mean, nobody i arguing that they don't raise toh medical questions that implicate deeply theological and moral questions. and idaho, like 22 other states, and even congress in emtala recognizes that there are two patients to coid in those circumstances.

and the two-patient scenario is -- is tough when you have these competing interests. juickagan: you know, that would be a good response if federal law did not take a position on what you chacterize as a tough question, but federal law does take a positn that question. it says that you don't have to wait until the persoisn the verge of death. t woman is going to lose her reproductive organs, th's enough to trigger this duty on the part of the hospital to stabilize the patient. and the way to stabilize patients in these circumstances, all doctors agree. mr. turner: ano law does not require that doctors wait until a paenis on the verge of death. there is no imminency requirement. there is no medical certainty requirement. tha's -- justice sotomayor: i'm so answer the following question, and these are hypotheticals that are true. hold on one second, and you can tell me whether idaho's exception -- and we still go back to the point atven if idaho law fully complies with feral law -- you have a

pregnant women -- woman whis early into her second trimester at 16 weeks, goes to the er because she fe aush of fluid leave her body. she was diagnosed with pprom. the doctors believe that a medical intervention to terminate her pregnancy is need to reduce the real medical possibility of experiencing sepsis and uncontrolled hemorrhe om the broken sac. this is a story of a real woman. she was discharged in florida becae e fetus still had fetal tones and the hospital said she's not like tdie, but there are going to b serious medical complications. the doctors there refused to treat her because they couldn't say she would die. she was horrified, went home. the next day, she bled. she passed out. thankfully taken to the spal.

there, she received an abortion because she was about d. mr. turner: yeah. justice sotomayor: what you are telling us, is that a case in which idaho, the day before, would have said it's ok to have an abortn? mr. turner: under idaho's lifesaving exception, a doctor could in good faith -- if the doctor could in good-faith medical judgment determine -- justice sotomayor: no. i'm asking you. the florida doctor said, i can't say she's going to die. mr. turner: yeah. and, your honor, my point is that -- justice sotomayor: if your doctor says, i can't, with a dical certainty, say she's going to die, but i do know she's going to bleed to death if we don't have an abortion, but she's not bleeding yet, so i'm not sure. mr. turner: the doctor doesn't need to have medical certainty. justice sotomayor: counsel, answer yes or no. he doesn't have -- he doesn't -- cannot say that there's likely death. he can say there is likely to be a very serious medical condition -- mr. turner: yeah.

ste sotomayor: -- like a hysterectomy. let me go to another one. imagine a patient who eso the er with pprom 14 weeks. again, abortion is the excepted. she's up -- she was in and out of the hospital up to 27 weeks. this particular patient, they tried -- had to deliver her ba. the baby died. she had a hysterectomy, and e can no longer have children. all right? you're telling me the doctor there couldn't have done the abortion earlier? mr. turner: again, it goes back to whether a doctor can in good-faith medical judgment make -- justice sotomayor: that's a t for the doctor to risk when -- mr. turner: well, i think it's protective -- justice sotomayor: -- when idaho law changed to make the issue whether she's gog die or not or whether she's going to have a seriousedal condition. there's a big daylight by your standards, correct? mr. turner: it is very case by case. the examples, the prong -- justice sotomayor: that's the problem, isn't it? justice barrett: counsel, i' kind of shocked actually because i thought your own expert had said below that these kinds of

cases were covered. mr. turner: yeah. justice barrett: and you're now saying they're not? mr. turner: no, i'm not saying that's jupoint, your honor, is that -- justice barret wl, you're hedging. i mean, justice sotomayor is ng you would this be covered or not, and it was my understanding that the legislature's witnesses said that these would be covered. mr. turner: yeah, and those cts said, if they were exercising their medical judgment, they could in good faith determine that lesing care was necessary. and that's my point. this is a subjective standard. justice barret b some doctors couldn't, is -- some ctors might reach a contrary concluoni think is what justice sotomayor is asking you. mr. turner: and -- and let me -- justice barrett: -- if they reached -- if they reachedhe conclusion that the legislature's doordid, would they be prosecuted under idaho law? mrtuer: no. no. if they -- if eyeached the conclusion that the -- dr. reynolds, dr. white did, that these were lifesaving -- justrrett: what if the prosecutor thought differently? what if the prosecutor thought, well, i don't think any good-faith doctor could draw that conclusion, i'gog to put on my expert? mr. turner: and thatyo honor, is the nature of

prosecutorial discretion, and it may result in a -- a case that reque -- justice barrett: does idaho put out any kiguidance? you know, hhs puts out guidance about what's covered by the law and what's not. does idaho? mr. turner: there are regulations. dapa has some regulations. but i think the --heuiding star here is the planned parenthood vwaen case, which is a lengthy, detailed treatment by the ihoupreme court of this law, and it made clear, the court made clear, that there is no medical certain requirement. you do not have to wait fothe mother to be facing death. justice jackson: counsel, i don't -- chief justice roberts: thank you, counsel. is there -- what happens if a dispute arises with respect to whether or not the doctor was within the confines of idaho law or wasn't? is the doctor subjected to review by a medical authority? exactlhois that evaluated? because it's an obvious conrn if -- if -- if you have an individual exception for a

doctor, and we' hing a debate about is that covered b your submission that nothing in idaho law prohibits complying with emtala, i mean, who -- who makes the decision whether or not somethi's within or without? mr. turner: so, i mean, i -- i imine there are two ways the law can be enforced or at least two. the board of medinhas licensing oversight over a doctor. and the idaho supreme court made cleath that doctor's medical judgment is not going to be judged based on an objective anrd, what a reasonable doctor would do. that's not the standard. the second way would be if a -- chief justice roberts: well, what -- what is the standard? mr. turner: the doctor's good-faithal judgment, which is subjective. chief justice roberts: and 's not subject to review by any medicad if there's a complaint against the doctor that -- mr. turner: yeah. chief justice roberts: -- his standards don't comply? let's say he's the only docto at the particular emergency room, and he has his own particular standard. mr. turner: what -- what the idaho supreme court id is that you may consider another docto's opinion only on the

question of was it a pretextual medical judgment, not a good-faith one. chief justice roberts: thank you. justice thomas? juste alito? justice alito: well, i would think that the concept of good-faithedal judgment must take into account some objective standards, but it would leave a certain amount of leeway for an didual doctor. that was how i interpreted what the -- what the atsupreme court said. now you have been presend re today with very quick summaries of cases a aed to provide a snap judgment about what would be appropriaten ose particular cases, and, honestly, i think you've hardly been given an opportunityo swer some of the hypotheticals. but would you agree with me that if mical doctor, who is an exrt in this field, were asked bang, bang, bang, what wou y

do in these partul circumstances which i am now going to enumerate, the doctor would say:ai i don't -- this is not how i practice medicine. i needo ow a lot more about the individual case. would you agree with that? mr. turner: absolutely. and acog has, you know, in the case of prom, for example, acog doesn't just knee-jerk stay an aborti ithe standard of care. acog itself says that expectant magent is oftentimes the appropriate standard of care and so these are difficu questions that turn on the facts that are on the ground between the doctor as he is assessing them withimedical judgment that he's bringing to bear but is also necessarily constrained by idaho law. just like every other area of the practice of medicine, state w confines doctor judgment in some ways. justice alito: thank you. chief justice roberts: justice sotomayor? justice sotomayor: there is a diffen between stabilizing a person who presents a serious medical condition requiring stabilatn than a person who

ests with a condition, quoting idaho's words,he there is a -- poses a great risk of death to the pregnant woman. you agree there's daylight between the two? mr. turner: we agree, and i think this is most -- justice sotomayor: and so there will be some women who present serious medical condition that the federalaw would require to be treated who will not be tread der idaho law? mr. turner: no, i disagree with that. idaho hospitals are treating these women. they're not treating these women with- justice sotomayor: stop. mr. turner: -- abortions nessarily, your honor, and that's an importantoi. justice sotomayor: and that's my point. just answer the point, which is they will present with a serious medical condition that doctors inoofaith can't say will present death but will present those doctors -- potential loss

of an organ or serious medical complications for the woman. they can't perform those abortions? mr. turner: yeah. your hon, that hypothetical exists, and i don't know of a -- a ndion that is so certain to result in the loss of an organ but also so certain noto transpire with death. if that condition exists, yes, idaho law do say that abortions in that case aren't allowed. and i think -- justice sotomayor: all right. th -- let me stop you there because all of your legal theories rely on us holding at federal law doesn't require -- cannot preempt state lawn these issues. and so, when i asked you the question if a state defines likelihood of death more stngently than idaho does, you would say there's no federal law that would prohibit them from doing that? mr. turner: well, i say that emtala does not contain a

standard of -- justice sotomayor: so there is no -- no standard of care. in your briefing, you make the sg'position here, and you almost argue that now, tha-- that their position that federal law requirestalizing treatment and not equal treatment of patients, which was a positi y took in your brief, you seem to have backed off omt here, you seem to agree that federal law requires some stabilizing condition, whether or not you provide it to other patients. but i have countlessris that say that both -- that hhs has filed -- that pre-dobbs, pre-2009, this is not an unecented position, that hhs in countless situations cited hospitals for scrging patients who required an abortion as a stabilizing treatment.

core discussed that topic in the affordable care act and exicitly said that nothing in the affordable care act be construed to relieve any healthcare provider from providing emergency services as required by state or federal law. medical providers have told us th for decades they have understood both federal law and state law to require abortions as stabilizing cdions for people presenting serious medicari. lower courts, e's at least cases of lower courts saying you have tpride abortion. so this is not a post-dobbs unprecedented position bth government. mr. turner: it absolutely is. the -- in footnote 2, the administration cites to two readsheets that contain 115,000 rows of enforcement instances. the administration -- justice sotomayor: counsel -- rner: -- has not identified a single instance - justice sotomayor: -- counsel, pre-dobbs, this wasn't much oa question.

but there is hhs guidae d there's at least three cases in whh was invoked. the fact that we didn't have to -- that hhdi't have to do it much before pre-dobbs doesn't make theirosion -- mr. turner: my point is more -- justice sotomayor: -- unprecedented. mr. turner: my point is more fundamental, your honor. it's not just that therarfew instances. there are no instances. and not just on the issue of abortion. on any instance where hhs has come in and told a hospital: you have to provida eatment that is contrary to state law. and this isn't just about abortion. consider opioids. justice sotomayor: oh, now we're back to that. ok. thank you. chief justice roberts: justice kagan? justice kagan: mr. turner, practicing medicine isar but there are standards of care, aren't there? mr. turner: yes, there are. justice kagan: and o othose standards of care with respect to abortion ishain certain tragic circumstances, as you yourself, as your own state's law acknowledges, where a won's life is in peril and abortion is the appropriate standard of care, isn't that ght? mr. turner: that's right.

justice kagan: and emtala goes further. it says that the appropriate standard of ca c't only be about protecting a woman's life. it also has to be about protecting a woman's health. that's what emtala says, doesn't it? mr. turner: no, it doesn't. it defines emergency medical condition with a broader set of triggering condition b the -- the key question here is what is the stabilization requirement, andhais qualified by the availability term. justice kagan: the -- the stabilization requirement is -- is written in terms of making rehat a transfer would not relt in a material deterioration as to the emergency condition. nothing about has to be at death's door, right? mr. turner: i inthat's right, yeah. justice kagan: and there is a standardf re with respect to that on abortions too, right? if a woman is going to lose her reproductive organs unless she has an abortion, which happens

in certain tragic rcstances, a doctor is supposed to provide an abortion, isn't that right? mr. turner: emtala doesn't contain any standard of care. i don't ow where the administration is drawing -- justice kagan: do yo--o you dispute that there's a medical standa ocare that when a woman is about to lose her reproductive organs unss she has an abortion, that -- that doors would not say that an abortion is the appropriate standard of care in that situation? mr. turner: your hon, at i dispute is that there's a national uniform standard care that requires a top-down approach in all . idaho has set its own standard of care, and it has drawn the line oa fficult question. and it's inconceivable to me to think ongress attempted to answer this very fraught complicated question in a four-page -- in four pages of the u.s. code. it did not -- justice kagan: congress said as to any condition in the world, if an emergency paencomes in, you're supposed to provide the emernccare that will ensure that that patient does not see a material deterioration in tirealth. mr. turner: and always within the -- justice kagan: that's what congress said. and the abortion exceptionalism

here is on the part of the state saying we're going to ce that with respect to every other condition but not with respect to abortion -- mr. turner: abortion isn't exceptiona justice kagan: -- where we will not comply with the standard of care that doctors have accepted. mr. turner: your honor, abortion isn't exceptional. there are numerous cases where states intervene and say the anrd of care in this circumstance for this condition is x, not ioids, for example. in new jersey, a doctor cannot stabilize chronic pain with more than a five-day supply of opioids. in pennsylvania, it can be seven. other states, there is no limit. their reinof emtala requires thatho limitations get wiped out and you impose a national standard there are numerous other instances where states are coming in and saying, o state, the practice of medicine must cfo to this standard. and idaho has done that with abortion. it's done it with opioids. it's done it with marijuana use. there are countless examples, your honor. justice kagan: and your theory -- although the su has narrowed the reach of your

ate, your theory would apply even if it hadn't? i an, it would apply to ectopic pregnancies. it would apply even ifhe were not a death exception. i mean, all of your theory would apply no matter what, really, idaho did, wouldn't it? mr. turner: if -- yeah, i think the answer is emtala doesn't speak to that, but there are other background principles and limitations like rationale basis review, justicrequist, the chief justice recognized -- justice kagan: but your theory of emtalishat emtala preempts none of it? that ata tomorrow could say even if death is around the corner, a state tomorrow could say even if there's an ectic pregnancy, that still that's a -- that's a -- a choe the state and emtala has nothing to say about that? mr. turner: yeah. and that understanding is a hulene with respect to the federalism rule of states. it's the primary care providers for their citizens, not the federal government. justice kagan: it may be too humble for women's health, you know? ok. thank you. chief justice roberts: justice gorsuch?

justice gorsuch: i just wanted to understand some of your responses or efforts to respond to some of the questions that 've heard today. as i read your briefs, you thought -- idahohis that in cases of molar and ectopic pregnancies,orxample, that -- that an abortion is acceptable. mr. turn: rrect, your honor. justice gorsuch: and the example of someone who is't immediately going to die but may at some point in the futur tt that would be acceptable? mr. turner: it goes back to the good-faith medical standard, but, yes, if the doctor should determine -- cannot determine in good faith that death is going to afflict that woman, then no -- justice gorsuch: so it doesn't matter whether it happens torr or next week or a month from now? mr. turner: there is n imminency requirement. this whole notion of delayed care is just not consistent with the idaho supreme court's reading of the statute and what the statute says. justice gorsuch: and the gd

faith, as i read the idaho supreme court opinion,ha-- that controls? that's the end of it? mr. turner: absolutely, it is. justice gorsuch: all rht and then what do wdoith emtala's definition of "individual" to include both the woman and, as the statute says, the unborn child? mr. turner: yeah. 's -- you know, we're not saying, your honor, that emtal prohibits abortions. so, for example, in cafoia, stabilizing treatment may involve abortioncoistent with what that state law allows its doctors to perform. but thk our point with the unrn child amendment in 1989 is that it would be a very strange thing for congress to expressly amend emtala to require care for unborn children, and it's not just when the chd when the mother is experiencing active labor. the definitionf mergency medical condition" requires care wh t child itself has an emergency medical condition regardless of what's going on

th the mother. and so it would be a strange thing for congresso ve regard for the unborn child and yet also be mandating termination of unborn children. justice gorsuch: thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: i just want to focus othe actual dispute iexists now, today, between the government's view of emtala and idaho la bause idaho law has changed since the time of the district court's injunction both with the idaho supreme court and with a clarifying change by the idaho legislature. you say in your reply brief, and so t t -- the moyle reply brief says, that for each of the conditions identified by the solicitor general where, under their view of emtala, an oron must be available, you say in the reply brief that idaho law, in fact, allows an abortion in chf those

circumstances, and you go thugthem on pages 8 and 9 of the reply brief, each of the conditions. is there any condition that you're aware of where the solicitor general ysmtala requires that an abortion be availae an emergency circumstance where idaho law, as currently stated, does not? mr. turner: so, certainly, the admisttion maintains that there is such conditions. the ones they identify in the afdavits -- justice kavanaugh: what isou -- what is your view? mr. turner: and my view is that yes -- and i'gog to reference footnote 5 from the gray brief -- the mental health condition siatn. the administration says that's not on t tle. th's not a scenario where abortion is the only stabilizi care required. and i'm not sure where that construct of only stabilizing care comes from beus under their view, it's the doctor's determination atontrols, not this imposed only requirement. but be that as it may, the american psychiatric associati -- and so i'm taking general progar up on her offer in footnote 5 that there are no

professional organizations that t abortion as a standard of care. the american psychiatric association, in a 2023 position paper, says that abortions are petive for mental health conditions. that sounds like a necessi t me. and i don't know how, if a woman prestst seven months pregnant in an idaho emergency omnd says, i'm experiencing severe depression from this pregnancy, i'm having suicidal idti from carrying this pregnancy forth, that that wouldn't dethe administration's reading be the only stabilizing care. justice kavanaugh: so you think the ninth circuit panel, when it said every circumstance described by the administti's declarations involved life-threatening circumstances under which idaho law would allow an abortion, is what theinth circuit panel said? mr. turner: wegr with that because the conditions identified in the affidavi were all conditions that would fit under the lifesavi exception, and that's telling because, you kno tse doctors, when put under oath in

an affidavit, couldn't come up with any of the rrowing circumstances. they identified other ones. but i thk at the government doesn't want to talk about, again, is the mental health exption here. that is -- i just don't know how you can read their undstding of -- justice kavanaugh: well, i' just trying to figure out is there really a -- hethan the mental health, which we haven't had a lot of briinabout, is there any other condition identified by e licitor general where you think idaho law would not allow a physician in his or her good-faith judgment to perform an emergency abortion? mr. turner: not in their affidavits. they maintain nonetheless that when you compa t definition of what an emergency medical condition is, it is broader than the definition of the lifesaving exception in idaho law. and so thepresent this -- justice kavanaugh: well, that' what they -- they say, but then, when we get down to the actual conditions that are listed, the examples -- and justic sotomayor was going through some of those -- you veaid in

your brief at least that each the conditions identified by the government, actually, idaho law allows an emergency abortion. mr. turner: and i agree, and i think the injunction he also -- justice kavanaugh: well, what's -- what does that mean for what we're decidg re? mr. turner: well, what it means for idaho -- justice kavanaugh: if idaho -- if idaho law allows an abortion in each of the emergency circumstances that is identified by the government as emtala mandating that ibellowed? mr. turner: i'll say two things. i mean, the real practical first reonse is that idaho's under an injunction that inclus incredibly broad requirement that preempts state law -- justice kavanaugh:ig. i -- i understand that. and that may mean that there shouldn't be an injunction. i take your point on that. what'your second? mr. turner: my second point, your honor, is i don't know how this court can make the dermination on whether there arany real-world conditions without first answering th statutory interpretation question of what emtala's stabilization requiremt actually requires. that has to be addressed, and it

has to be addressed not only because that's for the direct -- justice kavanaugh: well, i was st picking up on your reply brief. y're the one who said it in your reply brief -- mr. turner: ye. justice kavanaugh: -- that there's actually n--o real daylight here in terms of the conditions. so i'm just picking up on what you all -- you all said. mr. turner: yeah. i understand, your honor. justice kavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: i guess i don't really understand why we have to address the stabilizing condition wt you say is that nobody has been able to identify a conflict. and on the mental health thing the sg says -- i just pick up to check footnote 5 -- "idaho badly errs in asserting that cong emtala according to its terms would turn emergency rooms into federal abortion en by allowing pregnancy termination for mental health concerns." so, if that's the only space that you can identify where idaho would precludeortion and emtala would require one, and the government is saying no, that's not so, what's the conflict? mr. turner: well, your honor, i

mean, of course, we think we win whether you find no factual conflict and, therefor t injunction had to go away. justice barrett: but why? why are you here? i mean, you know, the governnt says -- you say -- mr. turner: well, they sued us, uronor. justice barrett: well, hold on a second. you're here because there's an injunction preudg you from enforcing your law. and if your law can fully operate beusemtala doesn't curb idaho's authority to enforce its law, what's -- mr. turner: well, it can't under junction because the injunction says that idaho's law is preempted in an incredibly broad range of circumstances to avoid -- justice barrett: as -- as it conflicts thmtala, i thought. mr. turner: it -- it -- it is mu bader than that. it -- and this was based on the proffered injunctiony e administration to avoid an emergency medical condition, not in the face of an emergency dil condition. so what that means is idaho's law can't even operate when a doctor determines at condition might need to be avoided that hn't yet presented itself. that's far broader than the emergencmecal condition and

stabilization requirement under emtala because the stabilization requirement under emtala is only trigwhen there has been a determination that -- ice barrett: ok. well, i -- i would like to hear the solicitogeral's response to that. but let me just ask u e other thing about the mental health consideration because i can -- i can understand idaho's point that aenl health exception ulbe far broader than idaho law and had the poteto expand the availability of abortion far beyond what idaho law permits. but the stabilization requirement only exi until transfer, right, until transfer is psie? so it's hard for me to see how, with a mental heondition, that couldn't be stabilized before neengo transfer, right? at tint, the idaho hospital could say: well, you' -- you're stable, you're not immediating to be suicidal, we'll leave y ithe care of, you know, a parent or a appropriate treatment.seek mr. turner: well, that flexible vi ostabilization is very different than the government's very rigid vieof stabilizathich is, if an emergency medical condition calls for an abortion, it's got

to bided right there and then if it's available in this ve limited sense. and so the stabilization continuum that you're talking about, i agree, that's built into emtala because -- justice barrett: the statute says until transfer is possible. mr. turner: we, the -- the transfer provision kicks in if a hospit iunable to stabilize a condition. d , if a patient presents at a hospital and that hospitalas the capability, the availability to stabilize the conditi, the case of mental health, i invite general pregato come up here and tell you that i've got it all wngnd that, you know, the mother that i described would not need to receive stabilization in that circumstance and instead would tnsferred to a psychiatric hospital or something and that wouldn't constitute dumping under their reading. i just don't see how that comports with evytng they've said about the rigid view of stabilization that if a condition calls for it and a hospital can do it, it's got to be done there and then. justice barrett: does idaho have any kind of conscience exemption for doctors under state law? . rner: it does. and there are federal conscice protections as well. and i think that is a key point

here, your honor. the administration told this court in the fdaasthat individual doctors are never required to rfm an abortion from what i could tell, but that doesn't extend to hospitals. and soinhe case of catholic hoits, and there are hundreds of them treating millions of patients every year, under the administratio's reading, catholic hoits who faithfully adhere to the ethical and religious directives are now required to peabortions. justice barrett: is that because no federal conscience exemption applies? mr. turner: i don't know why they say that's the line that eyraw between individual doctors and religious institutions because coats-snowe on its face seems to cover both. justice barrett: ok. thank you. chief justice roberts: justice jackson? justice jackson: i'm really surprised to hear you say that idaho law permits everything that the federal law ruis. so i just -- i'm trying to understand that because it seems to me that if that's the case, then why couldn't emergency room physicians in idaho just ignore idaho law and foll t federal standard?

i mean, if -- if -- if the state is doing ect what the -- what the federal law says is required, if it's ok by idaho, then, we set idaho aside. we do what the federal law says and we all go home. mr. turner: well, i mean, our reading, of course, is that there is no confct and so as doctors aren't having to make this choice of do i follow emtala or do follow -- justice jackson: so your representation on the -- on behalf of idaho is that if a -- an ergcy room physician in aho follows emtala in terms of when an abortion is required to stabilize a patient, the be complying with idaho law such that there's going to be no prosecution and no problem? mr. turner: yes, because they have to comply with idaho law to comply with emtala. justice jackson: no, no. i'm asking you, if they i they comply with emtala, will ey necessarily have satisfied the requirements of ido w?

because that's what you seemed to say in response to justice kavanaugh and innse to justice barrett. so i just want to make clear if tha's the position of the state. mr. turner: emla- the scope of emtala's stabilization reirent is necessarily determined by idaho law in ts case. so -- justice jackson: no. you're saying, if they follow idaho law, then eyill be following emtala law. mr. turner: well, i -- justice jackson: i'd like for you to -- i'd like for you to -- mr. turner: -- i think it's both, your honor. justice n: no, it's not. i'd like for you to entertain the other possibility. situation in which the united states says here's a stabilizatiosiation that the united states would say the person has to have an abortion, the physicians would say we're following emtala andboion is required, i thought you said in response to justice kavanaug yes, idaho law would also say that's a situation inhi an abortion is allowed. if that's the case it seems to me there is no daylight, there'no conflict,

as you've said, but it's because idahis in full compliance with what the federal law is saying. 're getting it wrong, you're saying. not what we really mean.hat's what we mean is whenever it's necessary to stabilize a patient who is experiein deterioration, as federal law requires. mr. turner: no. i -- i -- i think i understa the point that you're making. and the best way that i can think of it, your hono ithat emtala's stabilization requiremt quires medical judgment to determine what is the appropriate abizing treatment, right? and how does aocr exercise medical judgment? well, his trni, his experience, perhaps reference to professional standards of care that are national, but -- justice jackson: how about -- how about -- mr. turner: -- necessarily state law standards as well. justice jackson: -- how about -- th's not just something you're sort of coming up with. i mean, as justice kagan said at the beginning, emtala the doctor how he's supposed to

decide it ts particular circumstance with reference to the medical standards of care concerning when a patient is deteriorating in an emergency ndition situation. justice jackson: so, if that's the standard in emtala, are you representing that th is exactly what idaho is saying so that all the doctors need to do is follow emtala and they'll be fine under idaho law? . rner: well, of course, we're saying that idahoocrs need to comply with emtala. the question is how do doctors comply with emtala, and emtala -- justice jackson: let me ask you otr question. let me -- i -- i think i understandpoint. you're saying idaho is actually -- could actually bering more and the federal law has to make them do what idaho says. mr. turner: well, and it' important that -- justice jackson: yeah. mr. turner: -- emtala itself, it codifies this presumioof a backdrop of state law. there are background principles here, and that's what -- justice jackson: all right. let me exphat with you for just a second. i -- i had thought that this case was about preemption and the entirety of our

preemption jurisprudenthe notion that the federal government in certai circumstances can make policy pronouncements that differ from what the steay want or what anybody else may want, and the suprclause says that what the federal government says takes precedent. so you've been saying over and over again idaho is, you know, a state and we have healthcare policy choices and we've made -- 've set a standard of care in this situation. all that's true. but the question is to what extent can the federal government say: no, in this situation, our standard is going to apply? mr. turner: and -- juice jackson: that's what the don't understand how, consistent with our preemption jurisprudence, you can be saying otherwise. mr. turner: yeah, ian put a finer point on it. i don't think it's -- the question is necessarily what can congress do but what did congress do here with emtala, and -- justice jackson: a rht. so what did it do here? mrtuer: yeah. it started, it opened the medicare act by saying t deral government shall not control the practice of

medicine. and then, in emtala itself, it says state laws are not preempted. and then, t -- and then, when you get to -- justice ckn: state laws are not preempted to the extent -- mr. tuof a direct -- justice jackson: -- or are only preempted to the extent a direct conflict. and so now we ar--e are identifying a direct conflict. so why is preemption not working there? mr. turner: and -- and whether there'a direct conflict based on this court's longstanding precedent includes clear statement canons that -- w think we win on the text. let me be very clear. the text to us is very car it's an easy question. but the government's got toom -- overcome a lot of other hurdles, one being justice jackson: i hear you saying two things, that we're- there's not a direct conflict because ever we -- the federal government requires, we allow, which the aci physicians for human rights, who have loo idaho's law and says it prevents a lot of things in cirmsnces in which the federal government would require them disagree with you on the facts, but, anyway, you sa no conflict because we actually doing exactly what -- or lowing exactly what the federal government allows. and you say no conflict because

the federal government ith situation wanted the states to be able to set the staar. and i guess i don't understand how that's even conceivable, given this standard, given this ute -- mr. tueryeah. justice jackson: -- that is coming in to displace state prerogatives. mr. turner: and if i can't convince you on the second, let medd a third. justice jackson: yes, please. mr. turner: and there the clear statemencan. so the spending clause condition nature of this requis ngress to speak clearly and unequivocally att is imposing a abortion mandate. it -- th's not here in the statute. and, secondly, this court's presumption -- justice jason: but doesn't that make abortion different? i mean, ato you mean? they say provide whatever necessary to stabilize. so you're sayinth'd have to say provide whatever is necessary, inclubortion? that's the only way that is taken account of here? mr. turner: no, what i'm saying is, ene -- when we go and look at the phrase "available" and what it means, the gornment -- the administration is saying, well, they'reddg is tag that says consistent with state law. and we're saying no, under the clear statement canon, it's a presumption against prmpon.

and what the government actually -- what congress wldeed to do if it wanted to preempt this very traditional area of state law is to put a tag regardless of state law, and that is missing. justckso thank you. general prelogar.erts: thank general prelogar: mr. chief justice, and m iplease the court: emtala's promise is simple but profound. no one who comes to an emergency room ine of urgent treatment should be denied necessary stabizg care. this case is about how that guarantee applies to pregnt women in medical crisis. in some tragic cases, women suffer emergency complications that make continuinghe pregnancy a grave threat to their lives or tirealth. a woman whose amniotic sac has ruptured prematurely, for example, needs immediate treatmentovoid a serious risk of infection that could caadinto sepsis and the risk of hysterectomy.

a woman with severe preeamia can face a high risk of kidney failure that could require life-long dialysis in cases like es where there is no other way to stabilize the woman's dical condition and prevent her from deteriorating, emtal's plain text requires that she be offered pregnancy termination as the necessary treatment. and that's how this law has been understood and applied for decades. that usually poses no nfct with state law. even states that havshply restricted access to abortion after dobbs generally allow exceptions to feard the b idaho makes termination a felony punishable by years of imprisonment unless it's necessary to prevent the woman' death. i think i understood my friend today to acknowlgeeveral times that there is daylight between that standard and the necessary stabilizg eatment that emtala would require. and the idaho supreme cour recognized the same thing when it specifically contrasted the "necsa to prevent death" exception and said it was materially narrower than ari idaho law that had a health exception that tracked emtala.

the situation on the ground in idaho is showing the devastating consequences of that gap. today,ocrs in idaho and the women in idaho are in an imssle position. if a woman comes to an emergcy room facing a grave threat to r health, but she isn't yet facing death, doctors either have to delay treatment and allow her condition to material -- to materially deteriorate, or they're airlifting her out the state so she can get the emergency care that she needs. one hospital system in idaho ys that right now it's having to transfer pregnant wenn medical crisis out of the state about once everyth week. that's untenable, and emtala does not countenance it. none of petitioners' interpretations fit with the text, and so they have tried to kehis case be about the broader debate for access to abortion in cas unwanted pregnancy. but that's not what this case is abouatll. idaho's ban on abortion is enforceable in virtually all of

its applications, but in the narrow circumstances involving grave medical emergencies, idaho caot criminalize the essential care that emtala requires. i welcome the court's questions. justice thomas: general, are you aware of any other spending clause legislation that preempts criminal law? general prelogar: with respect to criminal law in particular, justice thomas, i'm t immediately thinking of relevant cases. we have a whole string cite of cases in our brief at page 46 that reflect times where the cot s recognized the preemptive force of spending clause legislation, includg situations where the funding restrictions apply to private parties, so that could include the coventry health case, for example. lead-deadwood is another example of this. but i'm not immediately recallg w that would apply in criminal law. of crs this court hasn't drawn those kinds of diinctions in recognizing the force of the supremacy claus justice thomas: now the --

normally, when we have a -- a preemption case, it's a regulated party who is involved in the suit, and they use it as airmative defense, for example, in wyeth or something. on the -- in this case, you are bringing an action against the state, and the state's not regulated. are there other examples of these types of suits? general prelogar: sure. i anthere are numerous examples where the united stat has sought to protect s sovereign interests in situations where a state has done what idaho has done here and interposed a law that conflicts. so i'd point to arizona versus it states as an example of that. ited states versus washington. there are a number of ca where this court has recognized that the federal government can protect its interests in this kind of preemption action. and, as meioned before, the court has a long line of cases regning that that preemption

principle applies in the context of federalicon that apply to private rts too. justice thomas: but even when the party that you're bringing the action ain is not a regulated party? generaprogar: that's correct, because what idaho has done here dectly interfered with the ability of the regulated parties who veaken these funds, federal funds with conditions attached, from being able to comply with the federal law that governs their behavior. and this was an essential part of the bargain that the federal goveme struck with hospitals in substantially investing in their hospit stems. and what the state has done is said you, thugour operation of state law, are no longer permitted to comply with this fundamental stilization requirement in emtala in this narrow category of cases. justice thomas: well, normally, wouldn't it be the regulated party that would actually be asserting the preemption that you're talking about? general prelogar: certainly, i can imagine siatns, for example, where a regulated party

would assert a preemption defense antoay the state law itself is preempted to the extent that it prevents that pay om being able to comply with federal law. t'm not aware of any principle or precedent in this cot's case law to suggest that that's the only way f t government to protect its sovereign interes. justice thomas: that is the normal way, though? general prelogar: i think that that's often the fact pattern of particular cases. justice alito: d't understand how your argument about preemption here sqre with the theory of spending clause -ofongress's spending clause power. ththry is congress can tell a state or any other entity or rson, look, here's some money or other thing of value,ndf you want to accept it, fine, then you have to accepceain conditions. but how does the congress's ability to do that authorize it to impose duties on otr party that has not agreed to accept this ne

gener plogar: there are no duties being imposed on idaho here. it's not required to provide emerncstabilizing treatment itself. the duties are- e -- justice alito: well, all right. general prelogar: -- appedo the hospital. justice alito: not -- not duties. how can you impose restrictions on what idahcacriminalize simply because hospitals in idaho have chosen toarcipate in medicare? i don't understand h ts squares with the whole theory of the spending cus general prelogar: well, i think that it squares with this court's long line of precedents cited at- stice alito: well -- general prelogar: -- page 46 of our bri -justice alito: well, i -- i've -- i've looked tm. general prelogar: -- that the court has recognized that -- justice alito: i've looked at those cases. i haven't found any square discussion of this particular issue. but i -- i'm interested in the theory. can you just explain how it works in theory? -- general prelogar: sure. so spending clause legislation is federal law. it's paedy both houses of congress. it's signed by the president. it qualifies as law within the meaninofhe supremacy clause, and -- justice alito: absolutely. absolutely. general prelogar: and -- and so think the supremacy clause dictates the relevant principl here -- justice alito: no, but what the law general prelogar: -- that in a situation where -- justice alito: i' l you

finish. yes, go ahead. general prelogar: in a situation where congress has ect law, it has full force and effect under thsuemacy clause, and what a state can't do is interpose itowlaw as a direct obstacle to being able to fulfill the federal ndg conditions. and thishey, justice alito -- justice alito: no, it's -- it's a -- general prelogar: -- woulme no conditions -- justice alito: -- it's a question -- general prelogar: -- under medicare are enforceable. justice alito: -- it's -- no. they're absolutely enforceable against the hospital that chooses to participate. general prelog: ll, i guess the -- the argument then would be that if a hospil instead bound by the state law and the state law getso ntrol, it would mean that hospitals couldn'paicipate in medicare at all. and that's not the argumentha the state's making here. what it wants is for its hospitals to be able to accept medicare funding but not have to face the restrictions that are attached to those funds as an sential part of the bargain. anthere is no precedent to support that outcome. justice alito: well, i -- i -- i just don't think -- i don' understand how -- how the theory works. but let me movono something else. let -- i'm going to try t 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 coition that requires an abortion in order to eliminate "'seoujeopardy" to her "health," the hospital must perform e ortion or transfer the woman to another hospital ere that can be done. is that a fair statement of your argunt general prelogar: so it includes not just serious jeopardy toer health but, obviously, also

seous dysfunction of her bodily -- justice alito: rht right. general prelogar: -- organs or a serious impairment of a bodily function. justice alito: right. general prelogar: and the other caveat i would make is that it would iwould require pregnancy termination only in a circumstance where that's the only possible way to stabilize her and prevent that cascade of health consequences. justice alito: does ispply at any point in pregnancy? general prog: so the pregnancy complications that we ha focused on generally occur in early pregnancy, often before e int of viability. there can be complications that haen after viability, but there, the standard of care is to deliver the baby if you need the pregnancy to end because it's causing these severe health consequences for the mom. justice alito: well, what if it -- what if it cu at a point where delivering the baby is not an option?

you're out of the third trimester, but it'rely not an option to deliver the baby. general prelogar: you sa tt you're in the -- justice alito: out of their trimester. general prelogar: -- third trimester? ste alito: no. i'm sorry. t of the first trimester. general prelogar: so, if you're contemplating a situation where delivery is not an option, then i think, in that circumstance, if the only way to pve grave risk to the woman's health or life is for the pregncto end and termination is the only option, then, ye tt's the required care that emtala has throh s stabilization mandate. but, criticay,n -- in many of these cases -- justice alito: ok. that -- that -- general prelogar: -- the very same pregnancy complication means the fetus can't survive regardless justice alito: i -- i understand that. nel prelogar: there's not going to be any way to susta that pregnancy. justice alito: let me ask you squarely the question that was discussed during mr. tn's argument. does the term "health" in emtala mean just physical health, or does it also include mental al? general prelogar: there can be grave nt health emergencies, but emtala could never require pregnancy rmation as the stabilizing care. justice alito: why? general prelogar: and here's why. it's because that wouldn't do anything to adesthe underlying brain chemistry issue that'causing the -- the mental health emergency in the first place. this is not about mental health nelly. this is about treatment by er doctors in an emergency ro. and when a woman comes in with some grave mental health emergency, if she has happens to be pregnant, it would be incredibly unethical to terminate her pregnancy.

e might not be in a position to give any informed consent. inea the way you treat mental health emergency is to address what's happening in the brain. ifo're having a psychotic episode, you administer antipsychotics. justice alito: well, i -- i really wt simple, clear-cut answer to this question so that goinfoard everybody will know what the federal government's position is. does "health" mean oy ysical health, or does it also include mental health? general prelogar: with respect to what qualifies as a emergency medical condition, it can include grave mental health emergencies, but let me be very clear about our position. that could never lead to pregnancy termatn because that is not the accepted standard of practice to trt any mental health emergency. justice alito: does the term "'serious jeopardy" in -- in (e)(11)(i) mean an immediate serious risk or may a risk of rious consequences at some future point suffice? general prelogar: the standard is defined in termofhether you need immediate medical treatment. and soheelevant question is, in the absence of immediate mecatreatment, are you going to have this serious jeopardy to

your health, dysfunction of your organs, will your bodily systems start shutngown, so it is pegged to the urgency of acute care in an emergency room. justice alito: so it has to be immediate? general prelogar: the -- t relevant standard under the statute is phrased in terms of whether these consequences will occur without imdie treatment, yes. so it's focused on the interaction between having some kind ournt health crisis that takes you to an emergency room in the first place and then hoprimate these -- these consequences are likely to be. justice alo:ell, there are two different things there, ether the person is -- whether the woman is in immediat jeopardy or whether the person -- the woman needs immediate care in order to eliminate jeopardy at a later point. so uerstand your answer to be that the woman need not be in immediate jeopardy, but if she doesn'gecare right away, jeopardy at some future point may suffice? general prelogar: so the

statutory standard itself is focused on iedte health risks. it's looking at the possibility that if the woman doe't get treatment then and there, what will happen, what will reasonably be expected to occur is that her organs could start shutting down or she might lose her fertility or have other serious health consequences. it is focused on this temporal link between the immediate need r treatment, which is i think reflective of the factha congress was narrowly focused on this emergency acute medical situation. justice alito: do the tes "impairment to bodily functions" or "'seoudysfunction of any bodily organ or part" refer only to permanent impairment or dysfunction? generaprogar: i think -- justice alito: or do -- does it al rer to temporary impairment or dysfunction? general prelogar: thk it can also refer to temporary impairment, but i'm not sure that it's easy to parse the two. for example, a lot otis a pregnant woman in distress, she might start suerg liver dager kidney malfunction and you don't know ex ante wheer that's going to be permanent or no the instruction that congress gave in emtala is you need t stabilize to guard against those very serious health risks. justice gorsuch: gener,'d -- i'd like to -- if you -- yeah, just understand f the scope of your argument here on the supremacy clause and how it operates in yod, putting aside the -- this case.

ulthe federal government condition the receipt of fds on hospitals that they comply with medical ethics rules provided for by the federal gornnt, a medical malpractice regime, and a medical licensing regime suc that effectively all state medical malpractice laws, all state medical licensing laws would be preempted? general prelogaranyou're imagining that this is regulatory action or that congress has passed a statute creating kind of a federal malpractice regime? justice gorsuch: you call it. general prelogar: i mean, i think i have a broad view of congress's authority to enact statutes, and so what i'd want to assess in tt tuation is, you know, whether congress is acting pursuant to one of its enumerated powers. justice gorsh:pending clause. this is all spending clause. genel elogar: yeah. so -- so i think that very likely congress could make those kinds of judgments and attach conditions to the receipt of federal funds.

and, you know, imecare, there are substantial conditions. justice gorsuch: even if it covers all hospitals in the state and effectively transforms threlation of medicine into a federal function -- general prelog: u know, there might be a.-- justice gorsuch: -- historically? general prelogar: -- at which this court thinks that it's really encroaching on the state's prerogatives in ways that a ionsistent with our constitutional sucre, but i don't think -- justice gorsuch: you don't -- general prelogar: -- we're awhe close to that -- justice gorsuch: -- you don't see -- general prelogar: -- in this case. juste rsuch: but do you see any bounds just in principle? general prelogar: i inthe bounds, you know, would have to come from this court's case law concerning federalism

principles. the court has said in cases like goales versus oregon that, of course, the federal government has authority to comprehensively rela on health and safety, including with respect to medical care. and so i don't think that there's any principle of exclusive governance of this area by the state. but, obviously, i'm sure you could construct hypotheticals that really -- justice gorsuch: all right. ok general prelogar: -- seem to be the federal government entiry taking over a state function and maybe that would be subject to a different principle. justice gorsuch: yeah. and emtala and -- and medicare allow the federal government to enforce the emtala dictate through civil monetary penalties? general prelogar: that's corrt,es. justice gorsuch: and also, you can terminate the medicare agreements if a hospital violatesmta in your view? general prelogar: yes. generally, the hospitaisiven the opportunity to come into compliance and to devep plan to ensure that there won't be future emtala violatio. it would obviously be an extreme sanction to -- to terminat medicare funding, but that is a possibility. justice gorsuch: and there's also a privateig of action for emtala violations that it have the possibility of equitable relief as ll general prelogar: yes. certainly, monetary relief and -- and possibly equitable relief as well. justice gorsuch: in -- in this case, you -- you -- you brought an equitable cause of action.

you didn'cite any statute to enforce emtala. and one ofheules in equity traditionally at least is that yod't get an equitable relief if there's an adeque remedy at law. and as we just discussed, there's a pretty reticulated statute here. seminole tribeay when you have a reticulated statute and lots of remedial options, you don't get equitable relief. thoughts? general prelogar: so let me say at the outset that the united states has long been recognized to have an action in equity, an inherent action in equity to appeal to the courts of this -- of this nation to protect its sovereign interests. and that's been reflected in things like -- justice gorsuch: its sovereign -- its pprtary interests? you mentioned washington and you mentioned -- general prelogar: arizona versus -- justice gouch: -- arizona. general prelogar: -- united states -- justice gorsuch: arizona was an -- general prog: -- is another example of that. justice gorsuch: arizona -- arizona was -- just sorry to interrupt, but arizona was an immigration case and -- general prelogar: right. justice gorsuch: -- the border, and washington was an attempt by a state to impose its worker compensation laws on the federal government in a way different om others. i -- i take those points. and eqtys all about proprietary interests and things

like that. do we have that here? geraprelogar: the -- well, i think that the court -- it's t -- i want to make sure to make clear that therere long line of cases that stand for this principle, including ceshat have addressed it directly like in re debs -- justice gorsuch: oh, debs. general prelogar: -- wyandot, so -- justice gorsuch: do you really want ry on debs, general? i mean, that wa't exactly our brightest moment. general prelog: do think, though, that it reflects the history and adion of this nation in recognizing that it's entirely appropriate for the unit states to seek to protect its interests in this manner and let me say, justice gorsuch -- justice gorchwhat do you -- general prelogar: -- this is a really importa iue to the united states. it wasn't pressed below. it wasn't pass un. justice gouc i'm just trying -- general prelogar: we haven't briefeitt all. justice gorsuch: i'm trying t -- general prelogar: it's not riictional. justice gorsuch: i'm ju ting to understand where it comes from. what is the proprietary interest here? general prelogar: it comes from -- justice gorsuch: it seems to me it's -- it's your money and how it'ing spent, and congress has given you lots of tools. general prelogar: i think it

also comes from the coition under obstacle preemption principles that there are important futis to be served by having the medicare program in place. and idaho has directly inteer with the ability of hospitals to accept these federal funds when they stand willing and able to comply with emtala's mandates and fulfill congress's desire here to make sure that no matter where you are in this couny,f you have an urgent medical need and you go to an er, you can be stabilized. justice gorsuch: thank you. justice jackson: general, is there -- chief justice robts counsel, your friend on the other side said that your position would requi religiously affiliated hospitals with emergency rooms to perform abortions. was he right? general prelarno. my friend was wrong. there are federal conscience protections that apply at the entity level to hospitals as well.

the key provisions are in the weldon amendment and also atsnowe, although that depends on the residency program of a particular hospital. now hhs said in a 2008 rulemaking on conscience protections that ihanever come across a hospital that had a blanket objection to providing life-preserving and health-preserving pregnancy teination care, but if a hospital had that kind of objeioand hhs recently informed me they still have not come across that hospital, that ulbe honored vis-a-vis hhs's enforcement ability. chief justice roberts: you said that applies at the entity level. can individual doctors ith emergency room -- do they have a conscien emption? general prelogar: oh, yes. yes. th're protected under the church amendments principally. and our position is that emtala does not override either set of conscience protections. so, if ainvidual doctor has a conscience objection to providing pregnancy termination, emla itself imposes obligations at the entity ve and the hospital should have plans in place to honor the individual doctor's conscience objection while ensuring appropriate staffing for emergencca. chief justice roberts: well, does that -- does that mean th thermu be somebody in the emergency room that can provide an abortion? wh if -- what if there are two

doctors, three doctors, and they all have a conscience exemption? general prelogar: no in that circumstance, emtala could not override those individual dto' conscience protections, but my understanding is that as a hospitals want to be able toause provide emergency care, they do things like ask doctors to articulate their objtis in advance so that that c b taken into account in making staffing decisions and who's on call. hospitals have a lot of plans in place -- chief justice roberts: are -- are you saying -- general prelogar: -- for these kinds of contingencies. chief justice roberts: yeah. are -- are you saying that there must be somedyvailable and on call in -- in a hospital of that sort? neral prelogar: the conditions of participation for medicare require hospitals to be appropriately staffetorovide emergency treatment. now, in a situation where a hospital doesn't -- hasn't done

that and it doesn'have anyone on hand who can provide care, you know, maybe alofhe doctors called in sick that day and there's just literally no one in the emergency room, or in ase, if everyone had a conscience objection, then the hospital would not be able to provide the care. but there are conditions of participation that are meant to enre that there is good governance of hospitals an organization to account -- chief justice roberts: when you say general prelogar: -- forhe situations. chief justice roberts: -- and the consequence of them not ing able to provide the care would be what? general prelogar: in that circumstance, i think they would likely be ouompliance with the conditions of participation reqre them to be appropriately staffed. but, if the question is could you force an individual doctor tep in then over a conscience objection, the answer is no. and i want to be really clear about that. chief justice roberts: i know, buthquestion -- general prelogar: we don't understand emtala to displace it. chief justice roberts: excuse me. the question is whether they must have available someone who can mp the procedures required by emtala. and what would be th consequence if they didn't? would it be eventual termination of their participation in general prelogar: that's right. so, if a hospital was continually disobeying the requirement to have in place sufficient personnel to run their emergency room, then i imagine that hhs would, through enforcement action, work with atospital to try to bring it into compliance. and if the hospitaulmately is just leaving itself in a sition where it can never provide care, then it would termine e medicare funding agreement. justice gorsuch: i thought -- justice barrett: general -- justice gorsuch: -- u st

said a minute ago -- i'm sorry. ste barrett: oh, no, go ahead. justice gorsuch: i thought you -- i just want to clarify this colloquy. i thought you said a minute ago, though, if the hospital had conscience objection and therefore didn't provide certai care, that that wouldn't render itutf compliance. which is it? general prelogar: that's correct. justice gorsuch: ok. all right. general prelogar: so the hospital could assert a conscience objection -- justice gorsuch: that's all. general prelogar: -- and emtala wod t override that. justice barrett: my question - i have a question about the hyde amendment. so gather from the briefing that there might be some situations in which emtala would require an abortio b the hyde amendment wouldn't permit federal funds to be used to pay for it. d you said in your brief that emtala requires in other circumans as well stabilizing treatment to be given that fer funds don't cover. can you give an example of that? and am rht about the hyde amendment? and then can y ge an example of that? nel prelogar: yes. so you are right about both things. is common under emtala that hospitals are going to have to pride care where there's not federal funding available. and i'll give you emple of a medicare patntho goes in and his emergency medical condition means he needs a particularruthat's not covered by medicare benefits. still, the hostahas to provide him with stabilizing treaenand give him that medication, even though the federal funding isn't going to pafoit. and that also applies to people who are uninsured, who an't covered by medicare in the first instance. e -- the whole point of emtala was it doesn't matt yr circumstances, it doesn't matter whether you can pay orotit

doesn't matter the particulars of your tuion, this is a guarantee. you can get stabilizing treatment. i wanto y, though, that i don't think there's any inconsistency between the lines congress drew in emtala and hyde. d congress itself has recognized that these statutes address scte issues. i'm thinking here of the provision in t aordable care act that was exclusively about abortion, and ther cgress said nothing in the aca displaces hyde and the other federal fundg strictions on abortion, but also, nothing in the aca displaces emtala' requirement to stabilize. d that shows two things. it shows first that congress recognized that stabilizing care can sometimes be pregnancy termination. and i think it also showed congress's recognition that these stut addressed their own stct spheres. and one final point on hyde, justice barrett. my friend isn't drawing a line d on hyde either because his point is, even if a woman o to an emergency room and theres are federal funds available under hyde to treat her, still, hospitals have no obligation under emtala to provide that care. justice barrett: swh about

the colloquy i was having with yourrid about what stabilizing treatment entails -- let's imina situation in which a woman is, i don't know, 10 weeks, and is told that if you carry this pregnancy to te, it could have, you know, consequences for your health, buyou just would need to abort before, like, say, 15 weeks, something like that. so there's not an immediacy, like -- so she's stable when she leaves the hospital, butn idaho, there's no place else that she can go at least until she's 15 weeks what is the federal government's position then? nel prelogar: i think, if i'm unrsnding the hypothetical correctly, that she likely wouldn't have an emergencmecal condition in the first place because the definition of hangn emergency medical condition is that, without immeat treatment, you are reasonably -- you willnably be expected to have serious dysfunction of your organs ious impairment of your bodily functions. and , that situation where a woman is somewhat high risk, you know, maybe she -- she has certain complicationwhe doctors can say there's some danger with continuing thi pregnancy, i don't think that that creates the kind of emergency medical condition that emtala is aimed at. justice barrett:k. last question, and this is about the spending clause issue. so it does sm d -- and i think kind of what some of the questions are gettin- it does seem odd that through a

side agreement between a private entity and the feder government, the private entity can get out of state law, right? so, in another administration, wo be possible then in reliance on the spending power for congress to say, you know, any hospital that takes these funds cannot perform abortions or any hospital -- despite state larequiring -- a state constitutional amendment requiring abortion to be available,s at possible or, you know, with gender reassignmenturgery? i mean, you can imagine it kind of going back and forth through spdi clause litigation in ways that would be unusual. general prog: yes, i think congress has broad power under the spending clae attach conditions. now dsn't mean that it's wholly unlimited. obously, congress would be having to act pursuant to an enumerated power, it would have to cwith other constitutional limits, and so the w would have to be valid. the spending clause itas built-in limits, things like relatedness and pure notice. justice barrett: so it would have to be acting pursuant to an enumerated pern forbidding gender reassignment surgery or abortionr ose sorts of things? general prelogarohno. i just meant that it would have bvalid spending.

justice barrett: the spendin clause? general prelogar: the spending ause. justice barrett: the spending clause. genel elogar: -- itself would be enough. justice barrett: ok. ok. general prelogar: yes. so we think justice gorsuch: yeah. so -- general prelogar: -- the spending clausitlf would be engh justice gorsuch: -- jt to follow up on that and going back to where i srt with could -- could the federal government essentially regulate the practi omedicine of the states through the spending clause, the answer, i think, is yes, congress coulpribit gender reassignment surgeries across the nation, it could ban abortion across the nation, through the use of its spending clause authority, rit? general prelogar: congress does have broad authority under the spending clause. and, yes, if it satisfies the conditions that the spending clause theel-- itself requires, then i think that that would be valid legislation. justice gorsuch: how -- nel prelogar: and the court has in many contexts regned --

justice gorsuch: how do we -- general prelogar: -- the spending cuslegislation preempts. so to justice -- justice gorsuc sthe -- the answer is yes? ok so how do we reconcile that with the statement in 1395 at nothing in this subchapter allows a federal officer to exercise any control over the practice of medicine? general prelogar: so, at the outset, i think, if congress self is doing it, then that provision is inapplicable by its own terms. th's looking at the -- justice gorch: you don't think it informs our view and understanding of the statute in any way? geraprelogar: well, i think, in the event of some kind of direct conflict, you know, okg at emtala in particular, it's the later in time enacted statute, and it's clearly more specific, so it would l. but this court itself has rejected the idea that there would be that kind of conflict.

and i'm thinking of the cms vaccine case whereitigants relied on this exact same provision of the medicare t, section 1395, and this court id no, that can't bear the weight that those litigants cod ace on it or it would call into question all of the conditnsf participation in medicare. that our clear statement rule with respect to spending clause legislation, our clear statement rule with respect to federalism are in play here? general prelogar: i think that he, ngress has spoken clearly with respect to what providers -- jti gorsuch: oh, i -- i -- general prelogar: --re supposed to do. justice gorsuch: that's not the questi. do you think those presumptions forget about whether you can satisfy them. general prelogarth requirement of clear notice under spending clause legislation, yes, i think that have always understood theirrs obligations under emtala. juste rsuch: ok. justice jackson: general, let me ask you rpond to a couple of things petitioners' couns said and just give y t opportunity to respond. he suggestedr id that you haven't identified a circumstance in which sothg that emtala requires idaho woul't allow. and i -- i didn't get a chance to ask him, but i took -- i took him to sort of mean that the way that idaho's statute operates, basically allows for a doctor

to say, well, in my view, you know, this health-threatening circumstance cldventually lead tdeh, and so i'm going to do it. so, to the extent that doctors are ilable to do that, i guess, he's saying there's preemption. but is it true that therrely isn't in operation a difference between the two -- the emtala and what idaho has required here? nel prelogar: no. that is gravely mistaken on three levels. it's innstent with the actual text of the idaho law. it's inconste with medical reality. and it's inconsistent with what's happening on the ground. and this is a really important point, so let me try to unpack th. on the text itself, idaho's law only allows termination ift's necessary to prevent death. and that is textuallve narrow compared to what emtala requires with the category o harm to begin with. in idaho, doctors have tsh their eyes to everything except death, whereas, under emta, you're supposed to be thinking about things like, is she abou to lose her fertility? is her uterus going to become incredibly scarred because of the bleeding? is she about to undergo the possibility of kidney failure? so i think that that is one critical distinction. thotr critical textual distinction is the idea of necessity. under idaho law, you have to nclude that death will necessarily result, which is also materlldifferent, and the idaho supreme court specifically rogzed it. second, with respect to the actual medical reatyere,

there are numerous conditions thate e worried about where a doctor's immediate concern is nodeh. that's a far more remote poibility. they're thinking about the heal ccumstances that emtala guards against. and let me give you two examples. the first is pprom, premature ruure of the membranes. we have declarations at 594 that explaith in detail and also at ja 615 to 617. what the doctors explained there -- this is dr. flech and dr. cooper -- is a woman comes in with pprom, her sac isupred. there's no chance the fetus is going to be leo survive, but at that point, she doesn't have active signs of infection, and so, until she deteriorates, you c't think she's close to death. what you're woredbout is she will become infected. she might develop sepsis. she might have these dramatic consequences for her future, but i's not about death. so i think that is one example where you can't do it. and then, finally, just the acalractice on the ground, women in ida tay are not getting treatment. they are gti airlifted out of the state to salt lake city and toeiboring states where the e health exceptions and there are laws because the doctors are facing mandatory mimum 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'ally necessary to prevent death.

chief justice roberts: thank you, counsel. justice thomas? justice alito? justice alito: we've now heard -- let's see -- an hour and a ha of argument on this case, and one potentially very important ra in emtala has hardly been mentioned. maybe it hasn'ev been mentioned at all. and that is emtala's reference to the woman's "unborn child." isn't th aodd phrase to put in a statute that imposes a mandate to perform abortions? have youveseen an abortion statute that uses the phrase "unborn child"? general prelogar: i's not an odd phrase when you look at what congress was doing in 1989. there were well-publicized cas where women were experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren'trting them. so what congress did -- justice alito: well, have you seen -- general prelogar: -- is that it --ustice alito: -- have you seen abortion statutes that use thphse "unborn child"? doesn't that tell us something general prelogar: it tells us that congress wanted to expand the protection for pregnant women so that they could get the

same duties to screen and stabilize when they ha a condition that's threatening the health and well-being ofhe unborn child. but what it doesn'suggest is that congress simultaneously displaced the independt preexistinobgation to treat a woman who herself is facing grave life and health coequences. justice alito: well, let'walk through the provisions of the statute that are relevant to this issue regarding the status and the potential inres of an unborn child. under (b)(1), if a woman goes to a hospital with an "emergency medicacoition" -- that's the phse- the hospital must either stabilize the condition , under some circumstances, transfer the -- the womato another facility. so we have this phrase, "emergency medical condition," in that provio and then, under (e)(1), the term "emergency medical conditionis defined to include a conditi that places the health of the woman's unborn child in seriou jeopardy.

so, in thasiation, the hospital must stabilize the threat to the unborn child. and it seems that thpln meaning is that the hospital must try to eliminate any immediate threat to the child, but performingn ortion is antithetical to that duty. general prelogar: but, ia circumstance -- justice alito: now a you -- you go -- you go so far as to say that the statute is clear in your favor. i -- i don't know howouan say that in light of the -- of those provisions that i just read to you. general prelogar: the statute did nothing to displace the woman herself as an individual with an emergency medical ndion when her life is in danger, when her health is in danger. that stabilization obligation equally runs to her and makes clear that the hostahas to give her necessary stabilizing treatment. and in many of the cases you're thinking about, there is no possible way to -- to stabilize thunrn child because the

fetus is sufficiently before viability that 's inevitable that the pregnancy is going to be lost, but idahoou deny women treatment in that circumstance -- justice alito: doesn't -- general prelogar: -- even though i's senseless. justice alito: doesn't what i've read to you show that the statute imposeonhe hospital a duty to the woman certainly and also a duty to the child? and it doesn't tell the hospital how it is to adjudicate conflicts between those interests and it leaves that to state law. now maybe a lo--ost of your gument today has been dedicated to the propoti that the idaho law is a bad law, and th m well be the case. but what you'resking us to do is to construe this statute that was enacted back during the reagan administration and signed by president reagan to mean that there's an obligiounder certain circumstances to perform an abortion even if dog at is a violation of state law. nel prelogar: if congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it cod ve redefined the statute so that the fetus itself

an individual with an emergency medical condition. but th's not how congress structured this. instead, it put the protection texpand protection for the pregnant woman. thdues still run to her. and in a situation whe h own life and health is gravely endangered, then, in that situation, emtala car. it says the hospital has to offer her stabilizing treatmt. justice alo:he -- the only -- general prelogar: and she doesn't have to accept it. these are tragic circumstances and many women want to do whatever they n save that prnancy. but the statute protects her and gives her that choice. justice alito: the only way you try to get out of the statutory interpretation that i st posited is by focusing on the term "individual." and you say, a-ha, in the dicony act, "individual" is defined to exclude an unborn child or a fetus. that's the only way you can try to get out of what i've just outlin. and isn't it true that under the dictionary -- that dictiony act definitions apply only if

they are not inconsistent wi the statutory text? and when you have a textha certainly, you wouldn't dispute the fact that the spal has a duty to the unrnhild where the woman wants to -- wants to have the pregnancy go to term, it indisputably protects the inres of the unborn child. so it's inconsistent with the definition in the -- in the dictionary act. general prelogar: no, noat all. the duty runs to the individual with the emergency medical condition. the statute makes clear that's the pregnant wan and, of course, congress wanted to be able to protect her in situations where she's suffering some kind ergency and her own health isn't at risk, but the fetus mit e. that includes common things like a prolsef the umbilical cord into the cervix where the fetus igrave distress, but the woman is not at all affected. hoitals otherwise wouldn't have an obligation to treat r, and congress wanted to fix that. but to suggest that in doing so congress suggested that the woman herself isn't an individual, that she ds't deserve stabilization, i think that tt an erroneous reading of this statute. justice alito: nobody's suggesting that the woman is not an individual and she e't -- she doesn't deserve stabilization. geraprelogar: well, the -- justice alito: nobody's suesng that. general prog: -- i think the premise of the question would be that the state of idaho -- justice alito: it wasn't the predicate.

it wasn't -- general prelogar: --aneclare that she cannot get the stabilizing treatment even if she's about d. that is their theory of this case and this statute, and it's wrong. chief justice roberts: justice sotomayor? justice sotomayor: general, this -- thila of conflict which your opposing counsel colleague says doesn't exist, you mentioned a situation where it . why don't you succinct ste what you -- well, they admit there's daylig. tell us exactly how you define where the daylight exists. general prelogar: the daylight, as i see i ests on two dimensions. they think that doctors can only provide stabilizing care when the woman is facing death. and we think, no, you can take into account things like kidney failure, the risk of szure, and life-long neurological impacts based on that. justice sotoyo well, they -- they said the recent decision of the oregonou says you don't need death to be imminent or immediat ihink, is the word they used if i'm not wrong. general prelogar: so what the idaho supreme court said in that

decision is that there'no particular level of imminency d no certain% chance requirement. but what the court couldn'do is turn away from the language requiring the type oha to exclusively be death. and also, the inherent concept of necessity ruing some degree of imminence, it's true that it's a suecve standard under idaho law, and the court made that ea but what the idaho supreme court also said is prosecutors are free to come in and vether medical experts second-guess doctors' decisns by saying maybe you didn't suectively think she really needed it as necessary to prevent atbecause, look, her -- her sac had ruptured, but she wasn't yet infected. and that's exactly the kind of situation that leads to women being driven out of state, dumped on neighboring statesy idaho, and criminalizing the care, the essential care that they need. justice sotomayor: thank you. chief justice roberts: justice kagan? justice kagan: yeah, if you

could just talk a littleit about that because, as i understood it, for example, i read reny that the hospital that has the greatt ergency room services in idaho has just inheew months that this has been in place had to airlift six pregnant women tnehboring states, whereas, in the prior year, they didnehe entire year. so, if mr. turner is right about what the state is trying to convey to hospitals about when they'll be prosecuted, kewhy is this happening? general prelogar: i think that the reason this is happening is because those doctors can look at the texofhe statute itself, they can look at the idaho supreme court's decision, whicma clear, very clear, that this was a departure from prior idaho laws tt acked emtala. and they can recognize that their livelihood is t line, their medical license, their ability to practice medicine, their freedom if they have to go to jail d rve one of these minimum two-year sentences of imprisonment, and they simply nn provide the care, even

consistent with their subjecve medical judgment, because as a matter -- matter of medical reality, for many tse conditions, it's not yet putting a woman at the brinkf ath or necessary to prevent her death, t they know that the standard of care is to provide hewi termination because she is just going to get worse and worse and worse if they wait iou and the other important point about this, and i think it goe back to this dual stabilization idea, is that, tgilly, in many of these cases, the pregnancy lt. there's not going to be any way to save that fetus beusa woman who has pprom at 17 weeks, there is no medical way to sustain the pregnancy to give the fetus a chance. so in atituation, what idaho is doing is waiting for women to wait and deteriorate and suffer the lifelong health nsuences with no possible upside for the fetus. it just stacks tragedy upon tragedy. justice kagan: and it -- it -- it can't be the appropriate -- you know, it's like -- it's become -- transfer is the appropriate standard of care in idah but it can't be the right standard of care to force somebody onto a helicopter. general prelogar: ani's entirely inconsistent with what

congress was trying to dinhe statute. you know, one of the primary motivators here was to prevent patient dumping. the idea was we don't want op to have to go somewhere else to get their care. you go to the first emergency room in your state, and they have to treat you and stabilize you. but this effectively allows states to take any particular treatment they don't nt their hospitals to provide and dump those patients out of state. and you can image at would happen if every state started to take this approach. justice kaga auestion on the spending clause questions that you've been asked. i mean, what would -- if you accepted some of these theories, what -- what would the consequences of something like that be that we would have to worry about? general prelogar: i think that would call into question any number of federal spending statutes that provide funds to private parties, and there are a bunch of them. you know, there's the medicare system itself, which is of course a morederal spending program. there are funds oved under title , der title ix, a lot of federal statutes out there th ge funds to private parties and insist on conditio of compliance with the federal funding restrictions.

. and if the court were to suddenly say that can't preempt contraryta law, then i think that it would seriously interfere with the ability of the federal government to get its benefit of the bargain i those spending programs. justice gan: and you mentioned before that this question has ner been a part of this case? general prelogar: that's right. they did not make these arguments in the lower court. eyriefly referred to the spending clause, but i don't understand them to have pressed this argument specifically. and so i think that -- the lower courts did not address it. i think the district court said in aooote, they briefly refer to it in a footnote of their brief, and it's essentially waived. justice kagan: thank you. chief justice roberts: justice -- jusavanaugh? justice kavanaugh: you've touched on what's happening on the ground, and that's an important considerioin answer to the question of what's happening. but idaho is representing -- and i stant to get your answer on this -- that, as i count it, nine conditions that have been identified by the government where emtala wouldeqre that an abortion be available, an abortion is available under idaho law. and that's in the reply brief.

now, are there other conditions? --o've ruled out mental health. are there other conditions you would identify, or are youus saying that that's not really happening on the ground? i think that's part of your answer, but i just wantoet a fuller answer on that. general prelogar: it certainly i't happening on the ground. these are the conditions that we're worried about and i think the problem with my friend's theory that idaho law would permit it is thayojust can't square it with the text of the statute. you know, the -- the -- justice vanaugh: what if there were general prelogar: -- theta of idaho -- justice kavanaugh: i'm sorry -- kp ing. general prelogar: well, i just wanted tsathey're not the ultimate authority on what the idaho law an tha's the idaho supreme court, of course.

and it has addressed this issue in the planned parenthood case. and i think it's really significant that, in planned parenthood, the idaho supreme court expressly contrasted this statute with other statutes that contain health-preserving measures and recognizeth was a -- a total departure from that. the legislature wanted to focus exclusively and mo nrowly on a "necessary to prevent death" exception. so i think that -- that that essentially means that the supreme urof 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 their medical judgment it's not necessarily to prevent death yet, but the woman is going to suffer serusealth consequences, their hands are tied and they can'provide that care under the idaho law. justice vaugh: if the -- what's on page 8 and 9 of the reply brief redaho law, would there be a problem still? general prelogar: iwe had an authoritative idaho supreme courdesion that said idaho law allows for termination in the circumstances eremtala would require it, yes, of course. then theonict goes away. justice kavanaugh: well -- neral prelogar: but i can't imagine the court would say that cause, of course, here -- justice kavanaugh: that's not quite what 8 and 9 say, but i -- i take your point on that. serate question, different category. i think one of the themeonhe other side is that this law

passed in 19 w a very important law addressing a very important problem; nel the problem where hospitals were turning away poor and uninsud patients who came in for emergency care. and the idea was that can't happen. c't allow hospitals in this country to turn away poor an insured people in an emergencies. but their theme is that the law was not desiedontextually to deal with specific -- with abortion or other specific kinds of car and so they make a textual argument, but i think they also ke broader contextual argument about the whole idea of what was going on in 1986. and i want to make sure -- i don't think that's really come up too muc i want to make sure you respond to that. geraprelogar: i appreciate having the chance to address that. so at the outset, i don't think they can square that theorwi the text of the statute, which says, in no uncertain terms, here is the fundamenta guarantee. if you have an emergency medical condition and you go to an er in this country, they have to stabilize you. they have to give you such treatment asaye necessary within reasonable medical probability to ensure that you don't teriorate. and, yes, congress did not

provide a reticulated li o all possible emergency medical coitns and all possible treatments, but it was vy clear that congrs t a baseline national standard of care to ensure that, no matter where you ven this country, u n't be declined service and the -- the urgent urgent needs of your medical condition adessed. and, you know, it would be no different if the state h ce out and decided to ban epinephrine. at's the singular way to treat anaphylaxis, a severe alrg reaction. that would violate the statute, and we would be up here making the exactly samergents, because congress didn't want that. if you have anaphylaxis and you go to an er anywhere around this country, they're going to give you epinephrine. and congress mandated that. and i don't see any way to try to draw lines around to exclude pregnancy complications in the very narrow but tragic circumstances where the only way to addressheoman's condition and prevent material

deterioration is for the pregnancy to end. justice kavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: so, general, i -- i understand e imary difference between emtala and the idaho statute to be is health, that -- that idaho focuses t risk of life, but the federal government says that emtala -- well, emtala says that the health is -- am i right, it's health and life? general prelogar: that's -- that's the principal difference, but i think it's also the difference between necessary to prevent death versus the health concerns would be reasonably expected to occur. so i think that that is a standard that builds in a little more space for doctors to ke action. justice barrett: got it. ishe federal government aware of any state, other than idaho, atas a law that does not take health into account? general prelogar: there are six other states tt ve severe abortion restrictions without a health exception. so i think that those are the primary category of states we're concerned about here. justice barrett: thank you. general prelogar: i should -- i should me clear that there are some pending judicial challenges in tho stes, and so their laws are not always enforceable or in effect right now. justice barrett: besides texas, has the federal government - has the federal government brought suits similar to the one

brought in idaho and tasn any of these other states? general prelogar: to be clear, texas was not our -- justice barrett: right ok. general prelogar: -- affirmative litigation. they sued us. but we have not brought affirmate tigation in other states. and i think it's -- this case has been on a cour a idaho's law was particularly severe because at the point at which we sued it seemed to cover ectopic pregnancy, and the state conceded that. now, they have modified the law to exclude that, but it was one of the most pressing concerns because of that. justice barrett: thank you. chief justice roberts: justice jackson? ice jackson: general, petitioner relies pretty heavily on cletement rule principles. and i wonder whether you might comment on my thought that those principles actuallagainst them in this case. as you said, congress set a baseline national standard of care. it has said, in no uncertain terms, that the hospital must provide stabilizing care to op experiencing emergency medical conditions. ere was no, as you've said, you know, particular conditions or particular treatments talked about, carved out, et cetera. so if a clear statem required, wouldn't it be the requirement of exemption -- of exempting abortion?

justice alito has about some ofhe exemptions for unborn child. of them we'd like an exemption. nothing ats this clear national standard of care. >> i think congress was clearly requiring sbization. it wasn't exeminparticular coitions or particular types of treatment. this court has said there is no canon of duluth -- dona rose. when you have a provision like that, the facthayou don't have a specifieneration of one of its applications does not mean you should read in some side of- me kind of implicit exception. what ihink we would need to see is a clear statement that congress meant for you to not provide abortions.

>> i think it is important to recognize thaevy relevant actor has understoodt is way from the beginning. then the agency's position all ong -- we not adopting a new position. providers have understood it. they have always provided fe-sustaining and healthy stating pregnancy termination consistent with and tyler. congress recognized it in the affordable care act. and i think there is any argument to be made that people understood what congress is doing thute. >> thank you, counsel. quick thank you, your honor. and tell it takes state law practice standards as they find them. as justice gorsuch noted, that isha section 1395 said. in the vaccine mandate case at

was referenced, that is what the general's office told this court when is at 1395 does t require -- does not allow federal officials to dictate partila treatments for particular cases. ats what they are trying to do hereit -- its -- it is confirmed by subdivision f. anything that could codify this, to justice jackson's colloquy at the end, that is the poi. you do presume that state law continue to operate alongside impala you don't presume the opposite. it is ppted byhe operations manual. that is the rosetta stone of intel enforcement. it tells doctors, it tel c enforcement agents on the ground that you consider what is available byefencing what is in the scope of that doctor's license. that is exactly what we are ying. it is also specifically directed

-- it requires hospitals comply with stateaw that dec hospitals to acquire their hospitals staff. they totally lack any case history that would support the adnistration's meeting. this always was understood to be e caswi you think we would find tse 115,000 instances. a single instance where state law was overridden. and finally, the text. the text qualifies and tell us steve drew -- stabilization requirement. kw they can perform open het surgery and we know debtors can draw blood. it is not just a plain mandate devoid of reference to state law. we know the word available even

in common usage incorporates state law. you are just the other day that when considering wheth ts is available for homeless people, it is in a physical and legal sense. there is a physical question and a legal question. opioids are available in the hospital. they are on the shelf, physically there. there is a legal question that comes into play there. the same with abortions. in response to the chief justice question, the general said both hospitals and doctors are exempt from and tell us suppose it tion mandate. we are relieved to hear that. i think it hhlhts the utter inconsistency of the administration's meetg. if the establishg quirement is done on them not to override conscious protections, d cannot be so specific and

include a requirement that is in direct conflict with state those two do not drive. this court does not lately find a direct conflict. coress must speak clearly. it has not done so here. the administration's position ultimately is untethered from any limiting pncle. but i think we heard that. the is no way to limit this to abortion. there is no way to limit it to idaho. they are 22 states with an abortion law on the books this isn't going to end with idaho or the six states because all the states that have abortion regulations define the heth and the emergency does.tion narrower than m tele this question will come up in state after state after state. it is not limited to physical health. i kn ty say there is no circumstance in which mical condition can require stabilization within abortion. now he is just fighting with the

american psychiatric association. that is not consistent. it isn't limited tan tele. u ll point out theajor spending because implications that are at play here. we recogni this is usually concerning if the federal government can pay private actors to buy the state law. in by enumerated powers. i think they admitted that. the court does not have to answer that question by our read