two hours. chief juste berts: we will hear argument this morning in case 23-726, moyle versus united states, and the consided case. mr. turner. mr. turner: thank you, mr. chief justice, and may it please the court: when congress amended the medicare act in 1986, it put emtala on a centuries' old foundation of state law. states have always been responsiblfolicensing doctors and setting the scope of their profeson practice. indeed, emtala works precisely beuse states regulate the practice of medicine. and noinin emtala requires doctors to ignore the scope of their licensanoffer medical treatments that violate state la the statutory provisions make first, section 1395, the

medicare act's eng provision, forbids the federal government from controlling the practice of meci. that's the role of state regulation. second, bdision (f) in emtala codifies a statutory presptn against preemption of state medical regulations. an third, emtala's stabilization provision is limited to available tremes, which depends on the scope of the hospital staff's medical license. illegal treatments are not available treatments. add in this court's own presumption against preemption of regulations, combine that with the need for clear a unambiguous spending clause coitions, and the administration's reinbecomes wholly untenable. the administration's misreading also lacks a liting principle. if er doctors can perform whatever treatment they determine is appropriate, then doctors can ignore not only state abortion laws but al state regulations on opioid use and informed consent requirements. that turns the presumption against preemption on its head

and leaves emergency rooms unregulated under state law. it's unsurprising that noou has endorsed such an expansive view of emtala, and unl bbs, nor had hhs. everyone understands that licensing laws limit medical prtice. that's why a nurse isn't available to perform open-heart surgery, no matter the need, no matter her knowledge. the answer doesn't change just because we're talking about abortion. the court should reject the administti's unlimited reading of emtala and reverse the district court'judgment. i welcome the court's questions. justice thomas: normally, when we have a preemption case, there's some relationship between the parties. is the state being reguledy the federal government under emtala, or is the ste -- engaged in some sort of quasi-contractual relationship?

mr. turn: s, your honor. in this case, the state, idaho, for example, has no state hospitals that participaten with the emergency rooms in emtala. and so, in this casethe isn't even a quasi-relationship. the parties beg gulated by emtala here are hospitals and doctors. and i think your question is ttg at the armstrong issue, and we think that is a gnificant question. it wasn't part of thqution presented. we think the indiana amicus brief raises significant questions and deals with that argument well. but the question presented here isne of direct conflict between idaho's law and emtala, and on that question, we don't thk 's hard at all. and, your honors, going to that direct conflict, i think, if you consider the expssimitation within the statute of availability -- justicson:ell, before we do that, can i just step back and get your understanding of the statute? you made some representations as to how you see it working.

and so let me tell you what i think, and thecan tell me whether you agree, disagree, or otherwise. so i think that therartwo things that are plain, pretty plain, on the --ace of this statute. one is that emtala is about the provioof stabilizing care for people who are experiencing emergency medical conditions. that's one thing i think the statute is doing. and i also think thaits operating to displace the prerogatives of hospitals or states or whomever with respect to that fairly narrow slice of the healthcare universe. this idea of emergency medical services is like one very mino sort of overall healthcare --he provision of healthce. so what that means is that when a hospital wants to only provide stabilizing care in emergencies fopele who can pay for it, r example, emtala says, no,

i'm sorry, you have to stabilize anyone who's experiencing an emergency medical condio or when a hospital wants to provide stabilizing treatments to people who are experiencing only certain kinds of emergency conditnsemtala says, no, here's the list of conditions d u have to provide stabilizing care for those people. look, it's our job to govern all of healthcare in o ste and we say that only certain kinds of healthcare can be given to people who aeriencing emergency medical conditions, we don'nt whatever treatment, we want only certain kinds of trtmt, emtala says, no, we e directing that as a matter of federal law, when someone presents with an emergency condition, they have tbe assessed and the hospital must do whatever is in its capacity to stabizehem. is that your understanding of the statute? mrtuer: partially, your honor. wegree that emtala does impose a federal stabilization requirement, but the question

re is what is the content of that stabilization requime, and for that, you have to reference state law. justice jackson: ok. well -- justice kagan: if i could just -- i mean, i think what you just said is important because, when you concede that emtala imposes a stabilization requirement, it , this statute, the federal government interfering, if you will, in a state's healthcare choices. so emtala is on its face a statute thatayit's not all the state's way. therarfederal requirements here. there is a requirement to stabilize emergency patients. and you agree with that? mr. turner: yeah, justice kagan, we agree that emtala -- emtala's purpose was narrow to bridge this gap that existed in some states -- justice kagan: o so, i mean -- mr. turner: -- and the failure to treat. justice kagan:- can just take off the table this idea that, you know, just bau it's a state and it's healthca, at the federal government has nothing to say about it. the federal government has plen tsay about it in this statute. no y're right, now there's a question of what's the content of this stabilization requirement.

and as far as i understood your opening remarks, you say, well, this is left to the states. but, if i'just looking at the statute, the statute tells you whatheontent of the stabilization requirement is. it's to provide such medical treatment as may be necessary to assure within reasab probability ato material deterioration of the condition is likely to occur if the person were transferred or didn't get care. sot lls you very clearly it's an objective standard. it's basically it -- you know, it's a standard thaclrly has reference to accepted medical practice, not just whatever one doctor happens to thk. but it'he is the content of the standard. you have to stabilize. what ds at mean? it means to provide the trtmt necessary to assure within reasonable medical prability that no material deterioration occurs.

mr. turner: yeah, let me respond in two ways. first, thebjtive standard that you set forth there in that understandg contrary to the administration's view. they say it is a totally subjective standard and whatever treatment a doctor determines is appropriate, that's -- justice kagan: i think that that's not true. i mean, i think you guys can argue about this yoursel but, as i understand the solicitor general's brief -- and we'lleehat the solicitor general says -- but the solicitor general says it's not up to every individual doctor. this is a standard that is objective that incorporates accepted medical standards of care. mrturner: well, and the more fundamental point is the definition that you quoted of stabilizing care in the operative position -- provisn in (b)(1) is also textually explicitly qualified by at which is within the staff and facilities available at a hospital. so then we come -- justice jackson: yes. and that's at -- justice kagan: that's quite right. that's quite right. it says th the staff and facilities available at the hospital. and if you just look at that langgei mean, it's absolutely clear that that's t rerence to what state law involves.

the staff and facilities available. if you don't ve staff available to provide the medical care, then i guess y c't provide the medical care. ifou don't have the facilities available to provide the medical ca, en you can't provide the medical care. a transfer has to take place for thgo of the patient. mr. turner: this is a really important -- justice kagan: but this is -- this -- the availabili he, because -- it's the availability of staff and facilities. it's, youno do you have the right doctors? do you have enou dtors? do you have the right faciliti? or is it better for the patient to transfer them to the hospital a few miles away? mrturner: you're exactly right. do you have the right docts? how do you answer that question except by reference to state licensing laws? justice jackson: b absolutely can't do that. i mean, that's sort of the initial point that i was trying to make, wch is that the federal mandate is to provide stabilizing care for emergency conditions, regardless of any other directive that the state has or the hospital s at would prevent that care from

being provided. that's -- that's the work of the statute. mr. turner: ste jackson, that's not even hhs's conclusion. inhetate operations manual, which they proffered on page6 of their brief, it defines what makes a staff person available under the statut a they say it has to -- justice 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. tuerit says they are available to the extent they are operating within t spe of their medical license. and that is our argument. they want to now draw it far more narrow and look only at physical availability. we agree that's a component, but there's also a lal availability component here too. justice sotomayor: counsel, the problem we're having right now is that you're sort of putting preemption on its head. the whole purpose of pemion is to say that if the state passes a lawhaviolates federal law, the state law is no longer effective. so there is no state licensing

law that would permit you -- permit the state to say don't treat diabetics withnsin. treat them only with pills, metformin. and a doctor looks at a juvenile diabeticndays, without insulin, they're going to get seriously ill and the likelihood a i don't know what that means under idaho law, we'llet to that shortly -- becsei don't know, this -- we believe this is a better treatment. mr. turner: ye. justice sotomayor: federal law would say, you can't do that. medically accepted -- objective medically accepted standards of ca require the treatment of diabetics with insulin. the medically accepted obligation of doctors when they have women with certain conditions that may not result in dea b more than likely will result in very serious dil conditions, including

blindness for some, for others, the loss of organs, for some, chronic blood strokes, idaho is saying, unless the doctor can say in good faith that this person's death is likely, as opposed to serio iness, they can't perform the abortion. so i don't know your argument about ste censing law because this is what this law does tells states, your licensing laws can't take out objective medical conditions tt could save a person from serious injury or death. mr. turner: yeah, i think there are two crucial responses to your point let me begin with the preemption point. subdivision (f) and section 1395 actually are telling hhs, the federal government, and courts

just the opposite, that you don't -- justice sotomayo it's saying you can't preempt unless there's a direct conflict. if objti medical care requires you to treat women who are -- who present the penal of serious medical complications and the abortions e only thing that c pvent that, you have to do it. mr. turner: no -- justice sotomayor: idaho law saysheoctor has to determine not that there's merely a serious medical condition but th the person will die. mr. turner: yeah. justice sotomayor: that's a huge difference, counsel. mr. turner: your hon agree that the -- there is daylight between how thadnistration is reading emtala and what idaho'fense of life act permits. we agree that there's a controversy here. but what i'm saying is that -- justice sotomayor: no, no, no, no, no, there's mo tn a controversy because what you're saying to us is,f tala doesn't have preemptive force in

not just idaho, it has a sin condition for abortions when it threatens a woman's life mr. turner: well, whenhe- justice sotomayor: but what you're saying is that no state in the nation -- and there are someig now that don't even have that as an exception to their an-artion laws. what you are saying is that ere is no federal law on the book that prohibits any state from saying, even if a woman will die, you can't perform an abortion. mr. turner: your honor, i know of no state that does not incle life-saving exception. but, secondly, the government -- justice sotomayor: some have been debating it at least, a if i find one -- but yr eory 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 theo - chief justice roberts: could i -- could i hear your answer? mr. turner: yeah. in -- the administration's reliance on a standard like best

clinical evidence orom national norm, i think that's very fraught becsehat it really is saying is the text itself ds't address what stabilizing treatment is required. you go outside the text to professional standards that are flting out there that might change day to day, and that really boils down to a question between a conflict between what the acog says and what idaho law sad that's not -- chief justice roberts: thank you. ank you, counsel. justice jackson: actually, can 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 yomust provide whatever treatment you have the capacity, meaning staff and falies, to provide to stabilize patients who are experiencing emergency medicacoitions. idaho law seems to say you cannot provide that treatment unless doing sisecessary to prevent a patient's death to the extent the tatnt involves abortion. why is that not a direct conflict?

you have "you must" in a cta situation, that's what the federal government is saying, and "you cannot if it involves abortion" says idaho. . rner: i think the nurse example really highlights 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 administration's g would say call her into action, put her into the operating omand open the patient up. justice jackson:ig. and -- mr. turner: but that is not -- justice jackson: -- and idaho -- justice kagan: well, that -- juste ckson: -- would say no, that's still a conflict. so, fine, let's say the -- let's say the 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 that says no, she can't? mr. turner: well, whether federal law could do that is a different questi tn whether emtala here does do that. and i thk e answer is clear that it doesn't. i mean, it's like the gonzales v. ogo case where the controlled substances act, you owthis court noted that that was -- the provisions there ly

up and -- and assume a medical profession being regulated by state police powers. that's the same with emtala. emtala is a fouragstatute. congress didn't attempt to address e andards of care for every conceivable medical treatment in -- justice kagan: it -- it definitely didn't address the standards of care. it did leave that to the medical community. it said, you know, the -- congress was not gngo address every treatment for every conditn,ut it said you do what is needed to assure non-deterioration. so i guess the question here is, do you concede that with respect to certain medical condion an abortion is the standard of care? mr. turner: no, e a standard of care under idaho -- well, i ou say, in idaho, there is a lifesaving exception for ceaiabortions, and that is the standard of care. and the standard of care is necessarily set and determined by state -- stice kagan: well, i think you have to concede that with

respect to cerinedical conditions abortion is the standard of care because your own stut as interpreted by your own courts, acknowledges that when a condition gets bad enough such that the woman's life is in peril, then the -- the -- the doctorsreupposed to give abortions. mr. turner: and -- justice kagan: and the reason th tt's true is that with respect to certain rare but extremely obviously important conditions and circumstances, abortion is the acpt medical standard of care. isn't that right? mr. turner: yes, and that -- that was my point, that there is a lifesaving exception under idaho law. now the question here is -- justice kagan: now -- now the question is, is it also the acpted standard of care when, rather than the woman's life being in peril, the woman's health is in peril? so let's take- u know, all of these cas a rare, but with tse rare cases, there's

a gnificant number where the woman is -- her life is t peril, but she's going to lose her reproductive organs, she's going to lose the ability to have children in the future, unless an aborti tes place. now that's the category of cases in which emtala says, my gosh, of course, the abortion is necessary to assure that no material deterioration occur and yet idaho says, sorry,o abortion here. and the resu ithat these patients are now helicoptered out of state. mr. turner: yeah. your honor, the -- the hypothetical you raise is a very difficult situation, and situations, i mean, nobody is arguing that they don't raise tough medical questionth implicate deeply theological and moral questions. and idaho, like 22th states, and even congress in emtala recognizeshathere are two patients to consider in those circumstce

and the two-patient scenario is -- is tough when you have these competing interests. justice kagan: you know, tt would be a good response if federal law dinotake a position on what you characterize as a toug question, t deral law does take a position on that question. itaythat you don't have to wait until the person is on the verge of death. if the woman is going toos her reproductive organs, that's enou ttrigger 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: and idaho law does not require that doctors wait until a patient is on the verge of death. theriso imminency requirement. there is no medical certainty requirement. that's -- justice sotomayor: i'm sorry, answer tlowing question, and these are hypotheticals that are true. hold on one second, anyou can tell me whether idaho's exception -- and we still go back to the point that even if idaho lafuy complies with federal law -- you hava pregnant women -- woman who is

early into her secd imester at 16 week gs to the er because she felt a gush of fluid leave her body. she was diagnosed with pprom. the doctors believth a medical intervention to terminate her pregnancy is needed to reduce the rl medical possibility of experiencing seps d uncontrolled hemorrhage from the broken sac. this is a story of a real woman. e s discharged in florida because the fetus still had tal tones and the hospital said she's not likely to die, but there are going to be serious medical complications. the doctors the fused to treat her because they couldn't say she would di she was rried, went home. the xtay, she bled. she passed out. thkfully taken to the hospital. there, she receiveanbortion

because she was about to die. mr. turnerye. justice sotomayor: what you are teing us, is that a case in which idaho, the day before, would have said it's ok to have an abortion? mr. turner: unr aho'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. thflorida doctor said, i can't say she's going to die. mr. turner: yeah. and, your honor, my point is that -- justice tomayor: if your doctor says, i can't, with a medical certainty, s s's going to die, but i do know she'going to bleed to death if we don't have an abortion, but s'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. justice sotomayor: -- li a

hysterectomy. let me go to anoerne. imagine a patient who goes to the er with pprom 14 weeks. again, abortn the excepted. she's up -- she was in and out of theostal up to 27 weeks. this particular patient, they ied -- had to deliver her baby. the baby died. she had a hysterectomy, and she can no lgehave 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 doctocain good-faith medical judgment make -- justice sotomayor: that's a lot r the doctor to risk when -- mr. turner: well, i think it's protective -- justice sotomayor: -- when idaho law changed toakthe issue whether she's going to die or not or wth she's going to have a serious medical condio 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,sn't it? justice barrett: counsel, i'm kind of d acally because i thought your own expert had said below tese nds 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. that's just my point, your honor, is that -- justice barrett: well, you're hedging. i mean, justice sotomayor is asking you would this ered or not, and it was my understanding that the legislature's witnesses said that these woulde covered. mr. turner: yeah, and those doctors said, if they we exercising their medical judgment, they could in good faith determine that lifesaving care was necessary. and that's my point. this is a subjective standard. justice barrett: but some doctors couldn't, is -- some doctors might reach corary conclusion, i think is what justice sotomayor is asking you. mr. turner: and -- and let me -- justice barrett: -- if they reached -- if they reached the conclusion that the legislature's doctors did, would ey be prosecuted under idaho law? mr. turner: no. no. if they -- if they reached the conclusion that the -- dr. reynolds, dr. white did, that the were lifesaving -- justice barrett: what if the prosecutor thought differently? what if the prosecutor thought, well, i don't think any odaith doctor could draw that conclusion, i'm going to put on my expert mr. turner: and that, your honor,s e nature of

prosecutorial discretion, and it may result in a -- a case that require -- juicbarrett: does idaho put out any kind of guidance? you know, hhs puts out guidance t what's covered by the law and what's not. does idaho? mr. turner: there are dapa has some regulations. but i think the -- the guiding star here t planned parenthood v. wasden case, which is aenhy, detailed treatment by the idaho supreme court of this law, and it made clear, the urt made clear, that there is no medical certainty requiremen you do not have to wait for the moero be facing death. justice jackson: counsel, i don't -- chief justice roberts: thank you, counsel. is there -- appe 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 reewy a medical authority? exactly how is that evaluated? if -- if -- if you have anncern. individual exceponor a doctor, and we're having a

debate about is that covered by your submission that nothing in idaho law prohibits complying with emtala, i mean, who -- who makes the decision whether or not something's within or without? mr. turner: so, i mean, i -- i imagine there are two yshe law can be enforced or at least two. the board of medicine has licensing oversight over a doctor anthe idaho supreme court made clear that that doctor'mecal judgment is not going to be dged based on an objective standard, what a reasonae doctor would do. that's not the standard. the secondayould be if a -- chief justice roberts: well, what -- what is the standard? mr. turnerthe doctor's good-faith medical judgment, which is subjective. chief justice roberts: and it's t bject to review by any medical board if there's complaint against the doctor at -- mr. turner: yeah. chief justice roberts: -- his standards d't comply? let's say he's the only doctor at the parr emergency room, and he has his own particular standard. mr. turner: what -wh the idaho supreme court has said is that you may consider another doctor's opinion only on e question of was it a pretextual

medical judgment, not a good-faith one. chief justice roberts: thank you. justice thomas? justice alito? justice alito: well, i would think athe concept of good-faith medical judgment must ta io account some objective standards, but it would leave a rtain amount of leeway for an individual doctor. that was how ierpreted what the -- what the state supreme cot said. now you have been presented here today with very quick summaries of cases and asked to provide a snap judgment about what would be appropriate in those particular cas, d, honestly, i think u've hardly been given an opportunity to answer some of the poeticals. but would you agree with me that if a medical doctor, who ian expert in this field, resked bang, bang, bang, what would you

do in these particular circumstances which i am now going emerate, the doctor would say: wait, i don't -- ts is not how i practice medicine. i need to know a lot more abou the individual case. would you agree with that? mr. turner: absolutely. and acog h, u know, in the case of prom, for example, acog don't just knee-jerk stay an abortion is the standard of care. og itself says that expectant management is oftentimes t appropriate standard of care. and so these are difficult questions aturn on the facts that are on the ground between the ct as he is assessing them with his medical judgment that he's bringing to bear but also necessarily constrained by idaho law. just like every hearea of the practice of medicine, state law confines doctor dgnt in some ways. justice alito: thank you. chief justice roberts: justice somar? justice sotomayor: there is a difference between stabilizi a person who presents a serious dil condition requiring stabilization than a person wh

presents with a conditio quoting idaho's words, where the a -- poses a great risk of death to the pregnant woman. you agree there's ylight between the two? mr. turner: wegr, and i think this is most -- justice sotomayor: and so there will be some women who present serious medical condition that the federal law would require be treated who will not be treated under idaho law? mr. turner: no, i disagree with that. idaho hospitalartreating these women. e're not treating these women with -- justice sotomayor: stop. mr. turner: -- abortions necessarily, your hono that's an important point. juste tomayor: and that's my point. just answer the in which is they will present with a serious medical condition that doctors in good faith can't sawi present death but will present potential loss of life.

those doctors --ottial loss of an organ or serious medical complications for the woman. theyan't perform those abortions? mr. rn: yeah. your honor, if that hypothetical exists, and i don't know of a -- a condition that is so cerin to result in the loss of an organ but also so certain not to transpire with death. if that condioexists, yes, idaho law does say that ortions in that case aren't allowed. d think -- justice sotomayor: all right. that -- let me stop yothe because all of your legal theories rely on us holding that federal law doesn't require -- cannot preempt state law on these issues. and so, when i asked you the quesonf a state defines likelihood of death more stringently than idahooe you would say there's no federal law that would prohibit them from doing that? mr. turner: well, i would say that emtala does not contain a standard of --

justice sotomayor: so there is no -- no standard of care. yr briefing, you make the sg's position here, andou almost argue that now, that -- that their position that federal law requires stabilizing treatment and not equal trtmt of patients, which was a position you took in your brief, you seem to have backed off from it here, you seem t agree that federal law requires some stabilizing condition whether or not you provide it to other patients. but i have countless briefs that say that bot--hat hhs has filed -- that pre-dobbs, pre-2009, this is not an unprecedented position, th h in countless situations cited hospitals for discharging tits who required an abortion as a stabilizing treaen

congress discussed that toc the affordable care act and explicitly said that nhi in the affordable care act shall be construed to relveny healthcare provider from providing emgey services as requir bstate or federal law. medical providers have told us that for decades they ve understood both federal law and state law to require abortions as stabilizing conditions for people presenting serious medical risk. lower courts, there's at least caseofower courts saying you have to provide abortion. so this is not a post-dobbs unprecedented position by the govern mr. turner: it absolutely is. the -- ifonote 2, the administration cites to two spreadsheets that coai 115,000 rows of enforcement instce the administration -- justice sotomayor: counsel -- mr. turner: -- has not identified a single instance -- justice somar: -- counsel, pre-dobbs, this wasn't much of a question

but there is hhs guidance and there's at least three cases in which it was invoked. the fact that we didn't have to -- that hhs didn't have to dot much befe e-dobbs doesn't make their position -- mr. turner: my point is more -- justice sotomayor: -- unprecedente mr. turner: my point is more fuamental, your honor. it's not just that there are few inans. there are no instances. and not just on the issue of abortion. on any instancwhe hhs has come in and told a hospital: you have to provide a treatment 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 is hard, but the e standards of care, aren't there? mr. turner: yes,he are. justice kagan: and one of those standards of care with respect tragic circumstances, as youin yoself, as your own state's w acknowledges, where a woman's life is iner and abortion is the appropriate standard of care, isn't that right? mrtuer: that's right. justice kagan: and emtala goes

further. it says th t appropriate standard of care can't only be about otting a woman's life. itlshas 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 conditions, but the -- the key question here is what is the stalition requirement, and that is qualified by the availability term. justice kagan: the -- the stabilization requirement is -- is written in terms of making sure that a transfer wou n result in a material deterioration as to the emergency condition. nothing about has to be at death'do, right? mr. turner: i think that's right, yeah. justice kagan: and there is a standard of care with respect to that on abortions too, right? if a woman is going to lose her reproductive orgs less she has an abortion, which happens in certain tragic circumstances,

a doctor is supposed to provide an abortio i't that right? mr. turner: emtala doesn't contain any standard of care. i don't know where the administration is drawing -- justice kagan: do you -- do you spe that there's a medical standard of care that when a woman is about to lose her reproductive organs unless she has an abortion, that -- that doctors would not say atn abortion is the appropriate standard of care in that situation? mr. turner: your honor, what i diutis that there's a national uniform standard of care that ques a top-down approach in all states. idaho has set its own standard of care, and it has drawn the line on a difficult question. and it's inconceivable to me to think that congress attempted 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 condionn the world, if an emergency patient comes in, you' supposed to provide the emergency care that will ensure that that patient does t e a material deterioration in their health. . rner: and always within the -- juice kagan: that's what congress said. and the abortion exceptionalism here is on the part of the state

saying we're going to accept that with respectovery other condition but not with respect to abortion -- mr. turner: abortion isn't exceptional. justice kagan: -- where we will not comp wh the standard of care that doctors have accepted. mr. rn: your honor, abortion isn't exceptional. the are numerous cases where states intervene and say the standard of care in this circumstance for this condition is x, not y. opioids, for example in new jersey, a doctor cannot stabilize chronic pain with more than a five-y pply of opioids. in pennsylni it can be seven. in other states, the ino limit. their reading of emtala requires that those limitations get wed out and you impose a national standard. there are numerous other instances where at are coming in and saying, in our state, the practice of medicine must conform to this standard. and idaho has done that with abortion. it's done i opioids. it's done it with marijuana use. there are countless examples, your honor. justice kagan: and your theo -- although the supreme court has narrowed the reach of your statute, your theory wou aly even if it hadn't?

i mean, it would applyo ectopic pregnancies. it would apply even if there were not a dea eeption. i mean, all of your theory would apply noatr 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 limitationli rationale basis review, justice rehnquist, the chief justice recognized -- justickan: but your theory of emtala is that emtala preetsone of it? that a state tomorrow could sa even if death is around the coer, a state tomorrow could say even if there's an ectopic pregnancy, that still that's a -- that's a -- a choice of the state and emtala has nothing to say about that? mr. tueryeah. and that understanding is a humble one with respect to the ferasm rule of states. it's the primary care providers for their citizens, not the federal government. justice kagan: it y too humble for women's health, you know? ok. thank you. chief justice roberts: justice gorsuch? justice gorsuch: i just wanted

uerstand some of your responses or efforts to respond to some of the questions that we've heard tod. as i read yo befs, you thought -- idaho thinks that in cases of molar and ectopic pregnancies, for example, that -- that an abortion is acceab. mr. turner: correct, your honor. stice gorsuch: and the example of someone who isn't immediately going to die but may at some point in the future, that that would be acceptable? mr. turner: it goes back to the good-faith medical standard, but, yes, if t dtor 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 tomorrow or next week or aon from now? mr. turner: there is no imminey quirement. 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 good faith, as i read the idaho

supreme court opinion, that -- that controls? that's the end of it? mr. turner: sotely, it is. justice gorsuch: all right. and then what do we do with emtala's definition of "individua tinclude both the won d, as the statute says, the unborn child? mrturner: yeah. it's -- you know, 're not saying, your honor, that emtala prohibits abortions. so, for example, in california, stabilizintrtment may involve abortions consistent with what that state law allows its doorto perform. but i think our point with t unborn child amendmentn 89 is that it would be a very strange thing for congress to expressly amd tala to require reor unborn ch, and it's not just when the child -- when the mother i experiencing active labor. the definition of "emergency dical condition" requires care when the child itself has emergency medical condition regardless of what's going on with the mother. and so it would be a strange

thing for congress to have regard for the unborn child and yet also be mandating termination of unborn children. justice gorsh: thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: i just want to focus on the actual dispute as it exists now, today,eten the government's view of emtala and idaho law, because 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 too the -- the moyle repl brief says, that for each of the conditnsdentified by the litor general where, under eir view of emtala, an abortion must be availab, u say in the reply befhat idaho la ifact, allows an abortion in each of those circumstances, and you go

through them on pages 8 and 9 of the reply brief, each of the conditions. ishere any condition that you're awa owhere the solicitor general says emtala requires that an abortion be available in an emergency circumstance where idaho law, as currently stated, does not? . rner: so, certainly, the administration maintains tha there is such conditions. the ones they identify in the affidavits -- justice kavanaugh: what is your -- whaisour view? mr. turner: anmyiew is that yes -- and i'm going to reference footnote 5 from the gray bri -the mental health condition situation. e ministration says that's not on the table. that's not a scenariohe abortion is the only stabilizing care required. and i'm not sure where that construct of oy abilizing care comes from because, under eiview, it's the doctor's determination that controls, not this imposed only requirement. but be that as it may, the american psychiatric association -- and so'm taking general prelogar up on her off i footnote 5 that there are no professional organizations that

set abortion as a stda of care. the american psychtr association, in a 2023 position paper, says that abortions are imperative for mental heth conditions. that sounds like a necessity to me. and i don't know how, if a woman presents at seven months egnant in an idaho emergency room and says, i'm peencing severe depression omhis pregnancy, i'm having suicidal ideation from carrying thi pregnancy forth, that that wouldn't under the adminiraon's reading be the only stabilizing care. justice kavanaugh: so you think the ninth circuit ne when it said every circumstance described t administration's declaratio involved life-threatening circumstances under which idaho law would allow an abortion, is what the ninth circuit panel said? mr. turner: we agree with that cause the conditions identified in the affidavits were all conditions that would fit under the lifesaving exception,ndhat's telling because, you know, these doctors, when put under oath in an affiditcouldn't come up

with any of these harrowing circumstances. theydeified other ones. but i think what the government doesn't want to talk about, ain, is the mental health exception here. that is -- i ju't know how you can read their understanding of -- justice kavanaugh: well, i'm just tryintoigure out is there really a -- other than the al health, which we haven't had a lot of briefing about, is ere any other condition identified by the solicitor genel ere you think idaho w uld not allow a physician in his or her good-faith judgment to perform an emergency abortion? mr. turner: t their affidavits. they maiainonetheless that when you compare the definition of what an emergency medical condition is, it is broader than the definition of the lifesaving exception in idaho law. and so they present this -- justice kavanaugh: well, that's at they -- they say, but then, when we get down to the actual conditions that arlied, the examples -- and justice sotomayor wagog through some of those -- you have said in

your brief at least that each of the conditions identified by the government, actually, idaho law allows an emergency abortion. mr. turner: and i re and i think the injunction here is also -- justice kavanaugh: well, what's -- what eshat mean for what we're deciding here? mr. turn: ll, what it means for idaho -- justice kavaug if idaho -- if idaho law allows an abortion in each of the emergency circumstances that is identified by the government as emtala mandating that it be allowed? turner: i'll say two things. i mean, the real practical first response is that idah's under an injunction that includes an incredibly broad ruiment that preempts state law -- justice kavanaugh: right. i --erstand that. and that may mean that there shouldn't be an injunction. i take your point on that. what's your second? mr. turner: my second point, uronor, is i don't know how this court can make the determination on wheth tre are any real-world contis without first answering the statutory interpretation question of what ea's stabilization requirement 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 just picking up on yr ply brief. you're the one who saiitn your reply brief -- mr. turner: yeah. justice kavanaugh: -- that there's actually no -- no real ylht 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 addrs e stabilizing condition if what you say is that nobody has been able to enfy a conflict. and on the mental health thing, the sg says -- i just picked it up to checnote 5 -- "idaho badly errs in asserting that construing emtala accordin its terms would turn emergency into federal abortion enclaves by allowing pregncy termination for mental health concerns." so, if that's the only space that you can identere idaho would preclude an abortion and emtala would require one, and the government is saying no, that's not so, what's the conflict? mr. tuerwell, your honor, i

mean, of course, we think we win ether you find no factual conflict and, therefore, the injunction had to go away. justice barrett: but why? why are you here? i mean, you know, the government says -- u y -- mr. turner: well, they sued us, your honor. justice barrett: well, hold on a second. y're here because there's an injunction precluding you from enforcing your law. and yr law can fully operate because emtala doesn' rbdaho's authority to enforce its law, what's -- mr. turner: well, it can't under the injunction because t injunction says that idaho's law is preempted in an incredibly broad range of ccutances to avoid -- justice barrett: as -- as it conflicts with emtala, i thght. mr. turner: it -- it -- it is much broader than that. it- and this was based on the proffered injunction by the admisttion to avoid an emergency medical condition, not in the face of an emergency medical condition. so what that means is idaho's law can't even operate when a doctor determines that a condition ghneed to be avoided that hasn't yet presented itself. that's far broader than the emergency medical condition and stabilization requirement under

emtala because the stabilizati requirement under emtala is only triggered when there has beea determination that -- justice barrett: ok. well, i -- i would like to hear the solicitor general's response to that. but let me just ask you one otheg about the mental health consideration because i can -- i canstand idaho's point that a mental health exception would be far broader th iho law and had the potential to expand the availability of abortion far beyond what idaho law permits. but the stabiliz requirement only exists up until transfer, right, until transfer is possible? so 's hard for me to see how, with a mental health condition, that couldn't be stabilized before needing to transfer, rit? at that point, the idaho -- you're stable, you're notu're immediately going to be suicidal, we'll leave you in the care of, you know, a parent or a partner who will then seek appropriate trt. mr. turner: well, that flexible view of stabilization is vy different than the government's very rigid view of stabilization, which is, if an emergency medical condition cas for an abortion, it's got to be provided right there a

then if it's available in this very 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: well, the -- the aner provision kicks in if a hospital is unable to stabiliz a condition. and so, if a patient prentat a hospital and that hospital has the capability, the availability to stabilize the condition, in the case of mealealth, i invite general prelogar to come up here and tell you that i've got it all wrong and that, you know, the mother that i descbewould not need to receive stabilization in that circumstance and instead would be transferred to a psycatc hospital or something and that wouldn'cotitute dumping under their reading. i just don'see how that comports with everything they've said about the rigid view of stabilization that if a condition calls fond 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? mr. turner: it does. and there are federal conscience protections as well. and i think that ia y point here, your honor.

the administration told this court in the fda case that individual doctors are never required to perform an abortion from what i could tell, but that e't extend to hospitals. and so, in the case of catholi hospitals, and there are hundreds of them treating millions of patients every year, under the administration's reading, catholic hospitals who faithfully adhere to the ethical and religious directives are now required to perform abortions. justice barrett: is that because no federal conscience exemption applies? mr. turner: i don't know why ey say that's the line that they draw between indivial institutions because coats-snowe on its face seems to cover both. justice barrett: ok. thank you. chief justice roberts: justice jackson? e jackson: i'm really surprised to hear you say that aho law permits everything that the federal law requires. so i jus-- i'm trying to understand that because it seems to me that if that's the case, then why couldn'emergency room physicians in ahjust ignore idaho law and follow the federal standard?

i meanif- if -- if the state is doing exactly what the -- what the federal law says is reired, if it's ok by idaho, then, fine, we set idaho asi. we do what the federal law says and we all go home. reading, of course, is thatur there is no conflict. and so as doctors aren't having to make this choice of do i follow emtala or do i follow -- justice jackson: so your represon on the -- on behalf of idaho is that if a -- an emergency room physician when an abortion is required to stabilize a patient, they will 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 wh aho law to complyitemtala. justice jackson: no, no. i'm asking you, if they -- if they comply with emtala, will they necessarily havsasfied the requirements of idaho law?

because that's what you seemed to say in se to justice kavanaugh and in response to justice barrett. so i just want to make clear if that's the position of e state. mr. turner: emtala -- the scope of emtala's stabilization requirement is necessarily determined by idaho law in this case. so -- justice jackson: no. you're sayg,f they follow idaho law, then they will be following emtala law. mr. turnerwe, i -- justice jackson: i'd like for you to -- i'd like for you to -- mr. turner: -- i tt's both, your honor. justice jackson: no, it's no i'd like for you to entertain e her possibility. you seem to be saying situation in whe united statesayhere's a stabilization situation that the united states would say the person has to have an abortion, following emtala and abortion is required, i thought you said in yes, idaho law would also say, that's a situation in which an abortion is allowed. if that's the case, then it seems to me is no daylight, there's no conflict, as yo've said, but it's because

idaho law is in full complia with what the federal law is saying. we're getting iwrg, you're saying. like this death thing, that's not what we relyean. what we mean is whenever it's necessary tolize a patient who is experiencing deterioration, as federal law requires. mr. turner: no. i -- i -- i think i understand the point that you're making. and the best wayhai can think of it, your honor, is that emtala's stabilization requirement requires medical judgment to determine what is the appropriate stabilizing treatment, right? and how does a doctor exercise medical judgment? well, his training, his exrice, perhaps reference to professional standards of care that are national, but -- justice jackson: how about -- how about -- mr. turner: -- necessarily state law standardell. justice jackson: -- how about -- that's not just setng you're sort of coming up with. i mean, as justi kan said at the beginning, emtala tells the doctor how 's supposed to decide it in this particular

circumstance with reference to thcal standards of care concerning when a patient is deteriorating in an emergency condition situation. mr. turner: yeah, emtala -- justice jackso s if that's the standard in emtala, are you representing that that is exactlwh idaho is saying so that all the doctors need to do is follow emtala and they'll be fine under idaho law? mr. turner: well, of coue, we're saying that idaho doctors need to comply with emtala. the question is how do doctors comply with emtala, and emtala -- justice jackson: let me ask you another question. let me -- i -- i think i understand your point. y're saying idaho is actually -- could actually be requiring re and the federal law has to make them do what idaho says. mr. turner: well, and it's importt at -- justice jackson: yeah. mr. turner: --mta itself, it codifies this presumption of a backdrop of state law. there are background principles here, and that's what justice jackson: all right. let me explore that with you for just a second. had thought that this was aboud that the entirety of o

preemption jurisprudence is the notion that the federal government in certain circumstans n make policy pronouts that differ from what the state may want or what y else may want, and the supremacy clause says that wt the federal government says takes precedent. so you've been saying over and over again idahos,ou know, a state and we have healthcare policy choices and we' made -- we've set a standard of care in this situati. all that's true. but the question is to what te can the federal government say: no, in this situation, our sd is going to apply? mr. turner: and -- justice jackson: that'what the government is saying, and i don't understa, consistent with our preemption jurisprudence, y c be saying otherwise. mr. turner: yeah, if i can put a finer point on it. i don't think it's -- the quess necessarily what can congress do but what did congress do he wh emtala, and -- justice jackson: all right. sohat did it do here? mr. turner: yeah. started, it opened the medicare act by saying the federal government sllot control the practice of medicine.

and then, in emtala itself, it says saws are not preempted. and then, when it -- and then, when you get to -- justice jackson: state laws are not preempted to the extent -- mr. turner: of a direct -- justice jackson: -- or are only preempted to the extent of a direct conflict. and so now we are -- we are identifying a direct conflict. so why is preemption not working there? mr. turner: and -- and whether there's a direct conflict on this court's longstanding ecedent includes clear statement canons that -- we think we wthe text. let me be very clear. the text to us is very clear, it' easy question. but the government's got to come -- oveoma lot of other hurdles, one being -- justice ckn: i hear you saying two things, that we're -- there'not a direct conflict because everything we -- the deral government requires, we allow, which the amici, phns for human rights, who have looked at idaho's law says it prevents a lot of things in circumstances in which the federal government would require them, they disagree with you on the facts, but, any no conflicbeuse we actually are doing exactly what allowing exactly whath federal government allows. and you say no conflict because the federal government in this

situation wanted the states to be able to set the standards. and i gudon't understand how that's even conceivable, given this standard, given this statute -- mr. turner: yeah. justice jackson: -- that is ming in to displace state prerogatives. mr. turner: and if i can't convince you on the second, let me add a third. justice jackson: yes, please. mr. turner: and there the clear statement canon. so t snding clause condition nature of this requires congress to speak clearly and unequivocally that it is imposing a abortion mandate. it -- that's not here in the statute. and, secondly, this court's presumption -- justice jackson: but doesn't that make abortion different? i mean, what do you mean? they say provide whatever is necessary to stabilize. so you're saying they'd have to say providwhever is necessary, including abortion? that's the only way that is taken account of here? mr. turner: no, what i'm saying is, when we -- when we go an look at the phrase "available" d what it means, the government -- the admisttion is saying, well, they're adding this tag that says csient with state law. and we're saying no, under the clear statement can,t's a presumption against preemption.

and what theovnment actually -- what congress would need to do if it wanted to preempt this very tradion area of state law is to put a tag regardless of stateawand that is missing. justice jackson: thank you. chief justice roberts: thank you, counsel. general prelogar. general prelogar: mr. chief justice, and may it please the court: emtala's promise is simpleutrofound. noneho comes to an emergency room in need of urgent treatme ou be denied necessary stabilizing care. this case is about how that guarantee applies to pregnant women in medical crisis. in some tragic cases, women suffer emergen cplications that make continuing their pregnancy gre threat to their lives or their health. a woman osamniotic sac has ruptured prematurely, for exame,eeds immediate treatment to avoid a serious sk of infection that could cascade into sepsis and thri of hysterectomy. a woman with severe preeclampsia

can face a high risk of kidney failure that cldequire life-long dialysis. in cases like these, where there is no other way to stabilize the woman's medical condition an prevent her from deteriorating, emtala's plain text requis that she be offered pregnancy rmination as the necessary treatment. and that's how this law has been understood and ali for decades. that usually poses no conflict with state law. even states that have sharply restricted access to abortion after dos nerally allow exceptions to safeguard the but idaho makes termiti a felony punishable by years of imprisonmentnls it's necessary to prevent the woman's death. i think i understood my friend today to acknowledge several times that there is daylight between that sndd and the necessary stabilizing treatment th emtala would require. and the idaho supreme court recognized the same thing when scifically contrasted the "necessary to prevent death" exception and said it was materially narrower than a prior idaho law thatad health exception that tracked emtala.

the situation on the ground in idaho swing the devastating consequences of that gap. today, doctors in idaho and th won in idaho are in an impossible position. if a woman comes to an emergency room facing a grave threat to her health, but she n't yet facing death, doctors either have to dey eatment and allow her condition to material --o terially deteriorate, or they're airlifting her out of the state s can get the emergency care that she needs. one hospital system in idaho says that right now 's having to transfer pregnant women in medical crisis out of the state about once every other week. that'untenable, and emtala does not countenance it. none of petitie' interpretations fit with the xtand so they have tried to make this case be about e broader debate for access to abortion in cases of unwanted pregnay. buthat's not what this case is about at all. idaho's ban on abortion is forceable in virtually all of

its applications, but in the narrow circumstances involving grave medical emergencies, idaho cannot criminalize thesstial 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 not immediately thinking of relevant cases. we have a whole string cite of cases in our brief at page 46 th reflect times where the court has recognized the preemptive force of spending clause legislation, including in situations whereheunding restrictions apply to private parties, so that could include the coventry health case, for example. lead-deadwood is another example ofhi but i'm not immediately recalling how that would apply in criminal law. of course, this court hasn' drawn those kinds of distinctions in recogninthe force of the supremacy clause. justice thomas: now the --

normal, en we have a -- a preemption case, it's a red party who is involved the suit, and they use it as an affirmative defense, r example, in wyeth or something. on the -- in this case, you are bringing an acti ainst the state, and the state's not regulated. are there other ames of these types of suits? genel elogar: sure. i mean, there are numerous examples where the united states has sought to protect its sovereign inres in situations where a state has done what idaho has done here and interposed a law that nfcts. so i'd point to arizona versus united states as an example of that. united states versus washington. e a number of cases where this cou h recognized that the federal government can protect its interests in this kind oprmption action. and, as i mentioned before, the court has a long line of cases recognizing that that preeti principle applies in the context

of federal funding restrictions that apply to private parties too. justice thomas: but even when the pay at you're bringing the action against is not a relad party? general prelogar: that's correct, because what idaho has done here is directly interfered with the ability of the regulated parties who have taken these funds, federal funds with conditions aacd, 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 government struck with hospils in substantially investing in their hospital systems. and what the state has done is said you, through our operation of ste law, are no longer permitted to comply with this fundamental stabilization requiremt 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 situations, for exple, where a regulated party would se a preemption

defense and to say the state law itself is preempted to the exnt that it prevents that party from being able to cpl with federal law. but i'm not aware ofny principle or precedent in this court's case law tsuest that that's the only way for the government to protect its sovereign interests. justice om: that is the normal way, though? general prelog: think that that's often the fact pattern of particularas. justice alito: i don't unrstand how your argument about preemption here squares withheheory of spending clause -- of congress's spenng clause power. the theory is congress canel a state or any other entity or person, look, here'some money or other thing of value, and if you want to acce i fine, then you have to accept certain conditions. but how does the congress's ability to do that authorize it to impose duties on another partth has not agreed to accept this money?

general prelogar: there are n duties being imposed on idaho he. it's not required to provide emergency stabilizing treatmt itself. the duties are -- are -- justice alito: well, all right. general prelogar: -- applied to the spal. justice alito: not -- not duties. how can you impose restrictions on what idaho can criminalize simply because hospitals in idaho have chosen to participate in medicare? i don't understand how this squas th the whole theory of the spending clause. generaprogar: well, i think that it squares with this cou's long line of precedents cited at -- justice alito: well -- general prelogar: -- page 46 of our brief -- justice alito: well, i -- i've -- i've looked at them. genel elogar: -- 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 plor: sure. so spending clause legislation is feder l. it's passed by both houses of congress. it's signed by the president. it qualifies as law within the meaning of the supremacy claus and -- justice alito: absolutely. ablutely. general prelogar: and -- and so i think the supremacclse dictates the relevant principle here -- juicalito: no, but what the law general prelogar: -- that in a sitti where -- justice alito: i'll let you finish. yes, go ahead.

general prelog: a situation where congress has enacted law, it has full force and effect under the supremacy clause, and what a state can't do is interpose its own law as a dict obstacle to being able to fulfill the federal funding condio. and this theory, justice alito -- justice alito: no, it's -- 's a -- general prelogar: -- would mean no conditions -- justice alito: -- it's a question -- general prelogar: -- under medicare are enforceable. justice alito: -i's -- no. they're absolutely enforceable against the hospital that chooses toarcipate. general prelogar: well, i guess the -- the argument then would be that if a hospital is instead bod by the state law and the state law gets to control, it would mean that hospitals couldn't participate in medicar at all. and that's not the argument that thste's making here. what it wants is for its hospitals to be leo accept medicare funding but not have to face the restrtis that are attached to those funds as an essential part of thbaain. and there is no precedt support that outcome. justice alito:el i -- i -- i just don't think -- i don't understandow- how the theory works. but let me move on to something else. let -- i'm going to try to restate yo geral theory, and i want you to tell me if this is right. i think your argument is, if a woman goeso emergency room and she has a condition that quires an abortion in order to eliminate "'serious jeopardy" to her "health," the hospital must perform the abortion or transfer the woman to another hospital where that can be do. is that a fair statement of your argument? generaprogar: so it includes not just serious jeopardy to her alth but, obviously, also serious dysfunction ofer bodily -- justice alito: right.

right. general prelogar: -- organs or a serious impairmentf bodily function. justice alito: right. general prelogar: and the other caveat i would make is that it would -- it would require pregnancy termination only in a circumstance where that's the only possible way to stabilize her and prevent th ccade of health consequce justice alito: does this apply at any point in pregnancy? general prelogar: so the pregnancy complications that we have focused on generay cur in early pregnancy, often before the point of viability. there can be complications that happen after viabilitybu there, the standard of care is to deliver the baby if you need the pregnancy to e bause it's causing these severe health consequences for the mom. justice alito:ell, what if it -- what if it occurs at a point where delivering the baby is not an optio

u're out of the third trimester, but it's really not oion to deliver the baby. general prelogar: you said that you're in the -- justice alito: out of the first trimester. general prelogar: -- third trimester? justice alito: no. i'm sorry. out of the first trist. 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 prevent grave sko the woman's health or life is for the pregnancy to end d rmination is the only option, then, yes, that's the required care that emtala has through its stabilization mandate. but, critically, in -- in many of these cases -- justice alito: ok. at- that -- general prelogar: -- the very same pregnancy compliti means the fetus can't survive regardless. stice alito: i -- i understand that. general prelogar: there'not going to be any way to sustain that pregncy justice alito: let me ask you squarely the questn at was discussed during mr. turner's gunt. does the term "health" in emtala mean just physic hlth, or does it also include mental health? general prelogar: there can be grave mental health emergencie but emtala could never require pregnancy termination as the stabilizing care. juicalito: why? general prelogar: and here's why. i's because that wouldn't do anything to address the unrlng brain chemistry issue that's causing the -- the menl health emergency in the first place. is is not about mental health generally. th iabout treatment by er doctors in an emergency room. and when wan comes in with some grave mental health emergency, if she has happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. she might not be in potion to give any informed consent.

instead, the way you treat mental health emergency is to address what'haening in the brain. if you're having a pshoc episode, you administer antipsychocs justice alito: well, i -- i really want a simple, clear-cut sw to this question so that going forward everybody will know what the federal vernment's position is. does "health" mean only physical al, or does it also include mental health? general prelogarwi respect to what qualifies as an emergency dil condition, it can include grave mental health emergencies, but let me be very clear about our position. that could never lead to pregnancy termination because at is not the accepted standard of practice to treat any mealealth emergency. justice alito: does the term "'seous jeopardy" in -- in )(11)(i) mean an immediate serious risk or may a risk of serious consequencest me future point suffice? general prelogar: e standard is defined in terms of whether you need immediate medical treatment. and so the relevant question i inhe absence of immediate medical treatment, are youoi to have this serious jeopardy to your health, dysfunction of your

organs, llour bodily systems start shutting down, so it is pegged to the urgency of acute ren an emergency room. justice alito: so it has to be immediate? general prelogar: the -- the relevant standd der the statute is phrased in terms of whether thescoequences will occur without immediate treaen yes. so 's focused on the inraion between having some kind of urgent health crisis that takes you to an emergency om in the first place and then how proximate these -- the consequences are likely to be. justice alito: well, there are two different things there, whether the person i--hether the woman is in immediate jeopardy owhher the person -- the woman ndsmmediate care in order to eliminate jeopdyt a later point. so i understand your answeto be that the woman need not be in immediate jeopardy, but if she doesn't get care right away, jeopardy at some future point may suffice? general prelogar: so the statutory anrd itself is

focused on immediate health risks. it'looking at the possibility that if the woman doesn't get eaent then and there, what llappen, what will reasonably be expected to occur is that her ga could start shutting down or she might lose hefertility or have other serious health consequences. it is focused on this temporal link between the immediate need for treatment, whichs think reflective of the fact that congress was narrowly focused on this emergen ate medical situation. justice alito: do the terms "impairmt bodily functions" or "'serious dysfunction of any bodily organ or part" refer only toernent impairment or dysfunction? general prelogar: i think -- justice alito: or do -- does it also refer to temporary impairment or dysfunction? general prelogar: i think it can also refer to temporary impairment, but i'm not sure that it's ea tparse the two. for example, a lot of times a pregnant woman in distress, she might start suffering liver damage or kidney malfuncti a you don't know ex ante whether that's going to be permanent or not. the inruion that congress gave in emtala is you need to stabilize to guard against those very serious healtris. justice gorsuch: general, i'd -- i'd like to -- if you -- yeah, just understand kind of the scope of your argument here on the supremausend how it operates in your mind, putting aside the -- this case.

could the federal governnt condition the receipt of funds on hospitals that they comply with medical ethics rules prided for by the federal government, a medical malpractice regime, and a medical licensing regime such that effectively all state medical malpractice laws, all state medical licensing laws would be preempted? general prelogar: and you're agining that this is regulatory action or that congress has psea statute creating kind of a federal malpraicregime? justice gorsuch: you call it. general prelogar: i mean, i think i have a broad view of ngss's authority to enact statutes, and so what i'd want to assess in that situation is, you know, whether congress is acting pursuant to one of its enumerated powers. justice gorsuch: spending clse. this is all spending clause. general prelogar: 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, in medicare, erare substantial

conditions. justice gorsuch: even if it covers all hospitals in the state and effectively transforms the regulation of medicinent a federal function -- general prelogar: you know, there migh be a.-- justice gorsuch: -- hiorically? general prelogar: -- at which this court thinks that it's really encroaching on the state's prerogatives in ways that are inconsistent with our constitutional structure, but i don't think -- justice gorsuch: you don'-- general prelogar: -- we're anywhere close to that -- justice gorsuch: -- you don't see -- general prelogar: -- in this case. justice gorsuch: but do you e any bounds just in principle? general prelogar: i think the bounds, you know, would have to come from th crt's case law concerning federalism

inples. the court has said in cases like gonzales versus oregonha of course, the federal government s authority to comprehensively regulate on health and safy, including with respect to medical care. and so i don't think that there's any principle of exclusive governan othis area by the state. but, obviously, i'sure you could construct hypotheticals that really -- jti gorsuch: all right. ok. generaprogar: -- seem to be the federal government entirely taking over a state function and maybe that would be subject to a different principle. justice gorsuch: yeah. and emland -- and medicare allow the federal government to enforce the emtala dictate through civil monetary penalties? geraprelogar: that's correct, yes. juicgorsuch: and also, you can terminate the medicare reements if a hospital violates emtala in your view? general prelogar: yes. generally, the hospital is given e opportunity to come into compliance and to develop a plan tonse that there won't be future emtala violations. it would obviously be an extreme sanction to -- to terminate medicare funding, but that is a possibility. justice gorsuch: and there's also a private right of action for emtala violations that it have the possili of equitable relief as well? generaprogar: yes. certainly, monetary relief and -- and possibly equitable relief as well. justice gorsuch: in -- in this case, you -- you -- you brought an equab cause of action. you didn't cite any statute t

enforce emtala. and one of the rules in equity traditionally at least is that you don't get an equitle relief if there's an adequate remedy at law. and as we just discussed, there's a pret riculated statute here. seminole tribe says, 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 outseth the united states has long been recognized to have an actioinquity, 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 in like -- justice gorsuch: its sovereign -- its proprietary inres? you mentioned washington and you mentioned --enal prelogar: arizona versus -- justice gorsuch: -- arizona. general prelogar: -- united states -- juicgorsuch: arizona was an -- general prelogar: -- is another expl of that. justice gorsuch: arizona -- arizona was -- just sorry to interrupt, but arizona was an immigration case and -- general prelogar: right. justice gorsh:- the border, and washington was an attempt by a state to impose its worker compensation laws on the federal government in a way different from others. -- i take those points. and equity is all about proprietary interests and things like that. doe have that here?

general prelogar: the -- wl, think that the court -- it's not -- i want to make sure to make clear that there are a long line cases that stand for this principle, including cases that have addressed it directly like in re debs -- justice gorsuch: oh, debs. general prelogar: -- wyandot, so -- justice gorsuch: do you really want to rely on debs, neral? i mean, that wasn't exactly our brightest moment. general prelogar: i do think, ough, that it reflects the history and tradition of this nation in recognizing that it's entirely appropriate for the united states to seek toroct its interests in this manner. and let me say, justice gorsuch -- justice gorsuch: what do you -- general prelogar: -- this is a really important issue to the united states. it wasn't esd below. it wasn't passed upon. justice gorsuch: i'm just tryg -- general prelogar: we haven't briefed it at all. justice gorsuch: i'm trying to -- general prelogar: it's not jurisdictional. justice gorsuch: i'm just trying to understand where it comes from. what is the opetary interest here? general prelogar: it comes from -- justice gorsuch: it seems to me it'-- 's your money and how it's being spent, and ss has given you lots of tools. general prelogar: i think it

also comes from the recognition under obstacle preemption principleshathere are important functions to be served by having the medicare program in pce and idaho has directly interfered with the ability hospitals to accept these federal funds when they stand willing and able to comply with emtala's mandesnd fulfill congress'dere here to make sure that mter where you are in this country, if 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 roberts: counsel, your friend on the other side said atour position would require religiously affiliated hospitals with emergen rms to perform abortions. was he rht general prelogar: no. my friend was wrong. therarfederal conscience protections that apply at the ti level to hospitals as well. the key provisions are in the

weldon amendment and also coats-snowe, although th depends on the residency program of a particular hoit. now hhs said in a 2008 rulemaking on conscience protections that it had never come across a hospital that had a blanket objection to providing lifererving and health-preserving pregnancy termination care, but a hoital had that kind of objection and hhs recently informed me they still have not me across that hospital, that would be honored vis-a-v h's enforcement ability. chief justice roberts: you said that applies at thenty level. can individual doctors in the emergency room -- do they have a conscience exemption? geral prelogar: oh, yes. yes. they're protected und t church amendments principally. and our position is that emtala does not override either set of consen protections. so, if an individual doctor has a conscience objection to providing pregnancy termination, emtala itself imposes obligations at the entity level, and the hospit suld have plans in place to honor the individu dtor's conscience objection while ensuring apopate staffing for emergency care. chiejuice roberts: well, does that -- does that mean that there must be somebody in th emergency room that can provide an abortion? what if -- what if the a two doctors, three doctors, and they all have a conscncexemption?

general prelogar: no. in that circumstance, emtala could noovride those individual doctors' conscience protections, but my understanding is that as a matter of best practice, because hospitals wanto able to provide emergency care, they do things like ask doctors to articulate their objections in advance so that that can be taken toccount in making staffing decisnsnd who's on call. hospitalha a lot of plans in place -- chief justice roberts: are -- are you saying -- general prelogar: -- for these kinds of ntingencies. chief justice roberts: yeah. are -- are you saying that there must be somebody available and on call in -- in a hospital of that sort? general prelogar: thcoitions of participation for medicare require hospitaltoe appropriately staffed to provide erncy treatment. now, in a situation where a hospital does't -- hasn't done that and it doesn't have anyone

on hand who can provide care, you know, maybe all of the doctors called in sick that day and there's just literally no one in the emergency room, or in this case, if everyone h conscience objection, then the hospital would not be able to provide the care. but there are conditions of participation that are meant to ensure that there is gd governance of hospitals and organizati taccount -- chief justice roberts: wn u say general prelogar: -- for these situations. chief justice roberts: -- and the consequence of them not being able to provide the care would be what? general prelogar: in that circumstance, i think they would likely be out of complianc the conditions of participation that require them to b appropriately staffed. but, if the question is could you force an individual doctor to step in then over a conscience objection, the answer is no. and i want to be really clear chief justice roberts: i know, but the question -- general emtala to displace it.erstand chief justice robexcuse me. the question is whether or not they must have available someone who can comply the procedures required by emtala. and what would be the consequenchey didn't? would it be eventual termination of their ppation in medicare? general prelogar's right. so, if a hospital was continlldisobeying the requirement to have in place sufficient personn trun their emergency room, then i imagine that hhs would, through forcement action, work with that hospital to try to brinit into compliance. and if the hospital ultimately is just leaving itself in a position where it caner provide care, then it would terminate the medicare funding agreement. justice gorsuch: i thought -- justice barret geral -- justice gorsuch: -- you just said a minute ago -- i'm sorry. justice barrett: oh, no,o

ahead. justice gorsuch: i thought you -- i just wanto arify this colloquy. i thout u said a minute ago, though, if the hospital had a consciencebjtion and therefore didn't provide certain ca, that that wouldn't render it out of compliance. which is it? general prelogar: that's correct. justice gorsuch: ok. all right. general prelogar: t hospital could assert a conscience oecon -- justice gorsuch: that's l. general prelogar: -- and emtala would not override that. justice barrett: my question - i have a questioabt the hyde amendment. so i gather from the befg that there might be some situations iwhh emtala would require an abortion, but the hyde amendment wouldn't permit federal fus be used to pay for it. and you said in yourri that emtala requires in other circumstances as well abilizing treatment to be given that federal funds don't cover. cayogive an example of that? and am i right about the hyde amendment? and then can you give an example of that? general prelogar: yes. so you are right about both things. it is common under ealthat hospitals are going to have to provide care where the's not federal funding available. and i'll give you an example of a medicare patient who goes in and his emergency medical condiomeans he needs a particular drug that's not covered by medicare benefits. still, the hospital has to ove him with stabilizing treatment and give him that medication, even though the feral funding isn't going to pay for it. anth also applies to people who are uninsured, who aren't coreby medicare in the first instance. the -- the whole poi oemtala was it doesn't matter your circstces, it doesn't matter whether you can pay or not, it

doe't matter the particulars of your situation, this is a guarantee. yocaget stabilizing treatment. i want to say, though, that i don't think there's any innsistency between the lines congress drew in emtala and hyde. and congress itself s recognized that these statutes address discrete issues. i'm thinking here of the provision in the affordable care act that was exclusively about abortion, and there, congress said nothing in the aca displaces hyde and the other federal funding restrictions on ab, but also, nothing in requirement to stabilize.s and that shows two t it shows first that congress recognized that stabilizing care can somemebe pregnancy termination. and i think it also showed con's recognition that these statutes addressed their own distinct spheres. and one final point on hyde, justice barrett. my friend isn't drawing a line based on hyde either bau his point is, even if a woman is on the brink of death and she goes to an emergency omnd there are federal funds available under hyde to treat her, still, hospitals have no obligation under emtala to ovide that care. justice barrett: so what about the colloquy i was having with your friend about what

stabilizing treatment entails -- let's imagine a situation in which a woman is, i don't know, 10 weeks, and td that if you carry this pregnancy to term, it could have, y kw, consequences for your health, but you just would neetobort before, like, say, 15 weeks, something li tt. so there's not an immediacy, like -- so she's able when she leaves the hospital, but in idaho, there's no place else that she can gateast until she's 15 weeks. what is thferal government's position then? general prelogar: i thin i i'm understanding the hypothetical correctly, that she lilyouldn't have an emergency medical condition in the first place because the definition of having an emergency medical condition is that, without immediate trea you are reasonably -- you will reasonably be expected to have serious dysfunction of your organs or serious irment of your bodily functions. and so, in that situation whe a woman is somewhat high risk, u know, maybe she -- she has certain complications where doctn say there's some danger with continuing this pregnancy, i don't think that that creates theinof emergency medical condition that emtala is ai. justice barrett: ok. last question, and this is about the spennglause issue. so it does seem odd -- and i ink kind of what some of the questions are getting at -- it does seem odd that through a si agreement between a private entity and the federal

governmentprivate entity can get out of state law, right? , in another administration, would it be possible then reliance on the spending power for congresso y, you know, any hospital that takes these funds cannot perfortions or any hospital -- despite state law requiring -- a sta constitutional amendment requirg ortion to be available, is that possible or, yokn, with gender reassignment surgery? i mean, you can imagine it kind ofoing back and forth through spending clause litigationn ways that would be unusual. general prelogar: yes, i think congress has broad power under the spending clause to attach conditions. now it doesn't mean thai's wholly unlimited. obviously, congress wod having to act pursuant to an enumerated power, it would have to comply with other nstitutional limits, and so the law would have valid. the spending clause itself has built-in limits, things like relatedness and pure notice. justice barrett: so it would have to be acting pursuant to an enumerated power in forbidding gend rssignment surgery or abortion or those sorts of things? general prelogar: oh, no. just meant that it would have to be valid spending. justice barrett: the spending

clause? general prelogar: the spending clause. ste barrett: the spending clause. general prelogar: -- itself would be enough. justice barrett: ok. ok. general prelogar: yes. so we think justice gorsuch: yeah. so -- general prelogar: -- the spending clause itself would be enough. justice gorsuch: -- so just to follow up on that and going back to where i started with could -- could the federal government esntlly regulate the practice of medicine of the states through the spending ause, the answer, i think, is yes, congress could prohibit gender reassignment surgeries across the nio it could ban abortion across the nation, through the use oftspending clause authority, right? general elar: congress does have broad authority under the spending clause. and, yes, if it satisfies the condio that the spending clause themself -- itself requires, then i think that that wod be valid legislation. justice gorsuch: how -- general prelogar: and the court has in many contexts recognized -- justice gorsuch: how do we --

generaprogar: -- the spending clause legislation preempts. so tjuice -- justice gorsuch: so the -- the answer yes? ok. so how do we reconlehat with the statement in 1395 that nothing in this subchapter allows a federal officer to exci any control over the practice of medicine? neral prelogar: so, at the outset, i think, if congress itself is doing it, enhat provision is inapplicable by its own terms. that's looking at the -- justice gorsuch: you don't think it informs our view and detanding of the statute in any way? general prelogar: well, i in in the event of some kind of rect conflict, you know, looking at emtala in particular, it's the later in time enacted statute, and it's clearly more specific, so it would control. but this court itself has rejected the idea that there would be that kind of conflict. d i'm thinking of the cms vaccine case where the litigants

ed on this exact same provision of the medicare act, section 1395, and this court said no, that can'ar the weight that those litigants could place on it or it wod call into question all of the conditions of participation in medicare. justice gorsuch: do you agree that our cleartament rule with respect to spending clause legislation, our ctatement rule with respect to federalism are in play he? general prelogar: i think that here, congress has spoken clearly with respect to what providers -- justice gorsuch: oh, i -- i -- general prelogar: -- are supposed to do. justice gorsuch: that's not the question. do you tnkhose presumptions apply? forget about wheou can satisfy them. general prelogar: the requirenof clear notice under spending clause legislatio y, i think that that does apply, and providers have always undeto their obligations under emtala. justice gorsuch: ok. stice jackson: general, let me ask you to respond to a couple of things petitioners' counsel said and just give you the opportunity to respond. he suggested or said that you haven't identified a circumstance in which something that emtala requires idaho wouldn't allow. and i -- i didn't get a chance a him, but i took -- i took him to sort of mean that the way that idaho's statute operates, it basically allows r doctor

to say, well, in my view, you know, thiseah-threatening circumstance could eventually lead to death, and so i'm in to do it. soto the extent that doctors are still able to do that, i guess, he's saying there's no preemption. but is it true that there really isn't in operation a difference between the two t emtala and what ida h required here? general prelogar: no. that is gravely mistaken on three ve. it's inconsistent with the actual text of the idaho law. it's inconsistent with medical reality. and it's inconsistent with what's happeng the ground. and this is a really important int, so let me try to unpack this. on the tt self, idaho's law only allows termination if it's necessary to prevent death. and that is textually very narrowomred to what emtala requires with the category of harm to begin with. in idaho, doctors have to shut their eso everything except death, whereas, under emtala, you'reupsed to be thinking about things like, is she about to lose her fertility? is hertes going to become incredibly scarred because of the bleeding is she about to undergo the possibility of kidney failure? so i think thath is one critical distinction. the other critical textual distinction is the idea of necessity. under idaho law, y he to conclude that death ll necessarily result, which is also materially different, and the idaho supreme court specifically recognized it. send, with respect to the actual medical reality here, there are numerous conditions

that we are worried about whe a doctor's immediate concern is not death. that's a far more remote possibility. th're thinking about the health circumstances that emla guards against. and let me give you two exames the first is pprom, premature rupture of the membran. we have declarations at 594 that explain this in detail and als at ja 615 to 617. what the docto elained there -- this is dr. fleischer and dr. coer -- is a woman comes in with pprom, her sac is ruptured. the's no chance the fetus is going to be able to survive, but at that point, she doesn't have active signs of inctn, and so, until she deteriorates, you can't think she's ose to death. what you're worried about is she will become infected. she might develop sepsis. she might have the dmatic consequences for her future, but it's not about deh. so i think that is one example where you can'do it. and then, finally, just the actual practice on the grod, women in idaho today are not getting treatment. they are getting airlifted out of the state to salt lake city and to neighboring states wher there are health exceptionan there are laws because the doctors are facing mandatory minimum two years in pso 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'seco-guess that maybe it wasn't really necessary to prevent death. justice roberts: thank you, counsel.

justice thomas? justice alito? justice alito: we've now heard -- let's see -- an hour and a half of argument on th ce, and one potentially very important phrase in emtala has hardly been mentioned. maybe it hasn't even been ntned at all. and that is emtala's reference to the wa's "unborn child." isn't that an odd phrase to put in a statute that imposes a mande perform abortions? have you ever seen an abortion statute that uses the phrase "unborn child"? general prelogar: it's not an odd phrase when you look at what congressasoing in 1989. there were well-publicized cases where womewe experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren't treating them. so what congress did -- justice alito: well,avyou seen -- general prelogar: -- is that it -- justice alito: -- he u seen abortion statutes that use the phrase "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 scrn d stabilize when they have a

conditioth's threatening the health and well-being of the unborn cld but what it doesn't suggest is at congress simultaneously displaced the independent preexisting obligation to treat a woman who herself is facing avlife and health consequences. justice alito: well, let's walk thugthe provisions of the statute that are relevant to this issue regarding the status and the potential interests of an unborn child. under (b)(1), if a woman goes to a spal with an "emergency medical condition" -- that's e phrase -- the hospital mus either stabilize the condition or, under some circutaes, transfer the -- the woman to another city. so we have this phrase, "emergcyedical condition," in that provision. and th, der (e)(1), the term "emergency medical condition" is defined to include a condition that placethhealth of the woman's unborn child in serious jeopardy. so, in that situation, the

hospital must stabilize the threat to the unborn child. and it seems that the plain meang that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is tithetical to that duty. general prelogar: but, in a circumstance -- justice alito: now -- and you -- you go -- u go so far as to say that the statute is clear in your favor. i -- i don't know how you can say that in light of the -- of those provisions that i just read to you. general prelogar: the statute did nothintoisplace the won rself as an individual wi an emergency medical condition when her life i danger, when her health is in danger. that stabilization obligation equally runso r and makes clear that the hospital has to give herecsary stabilizing treatment. and in many of the cases you're thinking about, there is no possible way to -- to stabilize the unborn child because t fetus is sufficiently before

viability that it's inevitable that the pregnancy is going to be lost, but idaho would deny women treatment in that circumstance -- justice alito: doesn'--eneral prelogar: -- even though it's senseless. justice alito: doesn't what i've read to you show that the statute imposes on the hospital a duty to the woman certainly and also a duty to the child? and itoe't tell the hospital how it is to adjudicate confctbetween those interests and it leaves that to state law. now maybe a lot -- most of your argument today has bn dedicated to the proposition that the idaho law is a bad law, and that may well be the case. but what you're asking 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 obligation under rtn circumstances to perform an abortion even if doing that is a violation of state law. general prelogar: if cones had wanted to displace protections for egnt women who are in danger of losing their own lives orhe health, then it could have redefined the statute so that the fetus itself is an individual witan emergency medical condition.

but that's not how congre structured this. instead, it put the protection in to expand protection r e pregnant woman. the duties still run to he and in a situation where her own life and health is gravely endangered, enin that situation, emtala is clear. itaythe hospital has to offer her stabilizing treatment. justice alito: the -- the only -- general prelogar: and she doesn't have to acceptt. these are tragic circumstances. and many women want to do whatever they can to save that pregnancy. t e statute protects her and gives her that choice. justice alito: the only way you try to get out of e atutory interpretation that i just posited bfocusing on the term "individual." and you say, a-ha, in the dictionary act, ndidual" is defined to exclude uorn child or a fetus. that's the only way you can try toetut of what i've just outlined. and isn'it true that under the dictionary -- that dictionary acdefinitions apply only if

they are not inconsistent with the statutory text? and when you have a text that, certainly, yououn't dispute the fact that the hospital has a duty to the unborn child where the woman wants to -- wants to haveheregnancy go to term, it indisputably protects the interests of the unborn chd. so it's inconsistent with the definition in the -- in the dictionary act. general prelogar: no, not at all. the duty runs to the individual with the emergen mical condition. the statute keclear that's the pregnant woman. and, ocose, congress wanted to be able to protect her in situatnshere she's suffering some kind of emergency and her own health isn't at risk, but the fetus might die. th iludes common things like a prolapse of the umbilical co to the cervix where the fetus is in grave distress, buth woman is not at all affected. hospitals otherwise wod't have an obligation to treat her, and congress wanted to fix that. but to suggest that in doing so congress suggested that the woman herself i't an individual, that she doesn't deserve stabilization, i think that that is an erroneous reading of this statute. justice alito: nobody's suggesting that the woman is not an individual and she doesn't -- shdoesn't deserve stabilization. general prelogar: well, th-- justice alito: nobody's suggesting that. general prelogar: -- i think the premise of the question would be that the state of idaho -- justice alito: it wasn't e predicate. wasn't -- general prelogar:

-- can declare that she caot get the stabilizing treatment even if she's about to die. that is their theory of this case and this state,nd it's wrong. chief justice roberts: justice sotomayor? juicsotomayor: general, this -- this lack of conflict which your opposing counsel colleague says doesn't exist, you mentioned a situation where it does. why don't you succinctly state what you -- we, ey admit there's daylight. tell us acy how you define where the daylight exists. general elar: the daylight, as i see it, exists 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 tnglike kidney failure, the risk of a seizure, and life-long neurological impacts bad that. justice sotomayor: well, they -- theyaithe recent decision of the oregon court says you don' need death to be imminent or immediate, i think, 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's no particular level of imminency and no certain% chan requirement. but what the court couldn't do is turn ayrom the language requiring the type of harm to exclusively be death. and also, e herent concept of necessity requiring some deee of imminence, it's true that it's a subjective standard under idaho law, and the court made that clear, but what the idaho supreme court also said is precors are free to come in and have other medical exper second-guess doctors' decisions by saying maybe you didn't subjectively think sheeay needed it as necessary to prevent death because, look, her -- her sac had ruptured, but she wasn't t infected. and that's exactly the kind of situation that leads to women indriven out of state, dumped on neighboring states by idaho, a cminalizing the ca, the essential care that they need. justice sotomayor: thank you. chief justice roberts: justice kagan? justice kagan: yeah, if you could just talk a little bit

about that because, as i understood it, for example, i read recently that the hospita that has the greatest emergency room services in idaho has just in the few months that thiha been in place had to airlift six pregnant women to neighboring states, ers, in the prior year, they did one the entire year. so, if mr. turner is right about what the state is trying to convey to hospitals about when they'll be prosecuted, like, why is this happening? general prelogar: i think that the reason this is happening is because those doctors can look at the text of the statute itself, they can look at the ahsupreme court's decision, which made clear, very clear that this was a departure from prior idaho laws that tracked emtala. and they can recognize that their livelihood is on the line, their medical license, their ability pctice medicine, their frdom if they have to go to jail and serve one of these minimum two-year sentences of prisonment, and they simply cannot provide the care,ve consistent with their subjective

medical judgment, because as a matter -- matter of medical reality, for many of these condio, it's not yet putting a woman at the brink of death or necessary to prevent her death, yet they know that t sndard of care is to provide her with termination because she is just going to get wsend worse and worse if they wait it out. and thotr important point about this, and i think it goes back to th dl stabilization idea, is that, tragically, in many of these cases, the pregnancy is lost. there's no going to be any way to save that fetus because a woman who has pprom at 17 weeks, there is no medil y to sustain the pregnancy to give the fetus a chance. so in that situation, what ida is doing is waiting for women to wait and deteriora a suffer the lifelong health consequences tho possible upside for the fetus. it just stac tgedy upon tragedy. justickan: and it -- it -- it can't be the appropriate -- you know, it's like -- it's become -- transfer is the appropriate andard of care in idaho. but it ca't be the right standard of care to force somebody onto a helicopter. general prelogar: and it's tily inconsistent with what

congress was trying to do in the statute. u ow, one of the primary motivators here was to prevent patient dumpin the idea was we don't want people to have to go somhe else to get their care. you go to the firsemgency room in your state, and they have to treat you and stabilize you. but this effectively allows states to take a pticular treatment they don't want their hospitals to provide and dump those patien o of state. and you can imagine what would haen if every state started to take this approach. justice kagan: a question on the spending clause questions that you' been asked. i mean, what would -- if you accepted some of these theories, what -- what would the consequencesf mething like that be that we would have to rry about? general prelogar: i think that it would call into qstn any number of federal spending statutes that ove funds to private parts,nd there are a bunch of them. you know, there's the medicare system itself, which is of course a major federal spending program. there are funds provided under title vi, under title ix, a lo of federal statutes out there that give funds to private parties and insist on conditions of compliance with the federal funding restriio.

. and if the court were to suddenly say that can't preempt contrary state law, then i think that it would seriously interfere with the ability of the federal government to get its benefit of the bargain in those spending programs. justice kagan: and you mentiedefore that this question has never been a pt this case? general prelogar: that's right. they did notakthese arguments in the lower court. they briefly referred tohe spending clause, but i don't understa tm to have pressed this argument specifically. and so i thinkha-- the lower courts did not address it. thk the district court said in a footnote, they briefly refer to it in a footnote of their brief, and it's essentially waived. justice kagan: thank chief justice roberts: justice -- justice kavanaugh? justice kavanaugh: you've touched on what's happening on the ground, and that's an important consideration in answer to the question of what's happeng. but idaho is representing -- and i just want to get your aner on this -- that, as i count it, nine conditions that have been identified bthgovernment where emtala would require that an abortion be available, an abortion is available under idaho law. anth's in the reply brief. now, are there other conditions?

-- you've ruled out mta health. are there other conditions you would identify, or are you just sayinghathat's not really happening on the ground? i think that'part of your answer, but i just want to get a fuller answer tt. geraprelogar: it certainly isn't happening on therod. these are the conditions that we're worried about. and i think the problem with my frie's theory that idaho law would permit it is that you just c't square it with the text of the statute. you know, the -- the -- justice kavanaugh: what if treere general prelogar: -- the state of idaho -- juickavanaugh: i'm sorry -- keep going. general prelogar: well, i just wanted to say they're not t ultimate authority on what the idaho law means. that's the idaho supremcot, of course. and it has addressed this issue in the plann penthood case.

and thk it's really significant that, in planned parenthood, the idaho supreme court expressly contrasted this statute with other statutes that contain health-pseing measures and recognized this was a -- a total departure from that. the legislate nted to focus exclusively and more narrowly on a "necessary to prevent death" exception. so i think that -- that that esseiay means that the supreme court of idaho has already touched on this issue, anit'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 serious health nsuences, their hands are tied and they can't provide that care under the idaho law. justice kavanaugh: if the -- what's on page 8 and 9 of the reply brief were idaho law, uld there be a problem still? general prelogar: so if we had ahoritative idaho supreme court decision that said ida law allows for termination in the circumstances where emtala ulrequire it, yes, of course. then the conflict goes away. justice kavanaugh: well -- general prelogar: bui n't imagine the court would say that because, of course, here- justice kavanaugh: that's not quite what 8 a 9ay, but i -- i take your point on that. separate question, difre category. i think one of the themes on the othesi is that this law passed in 1986 was a very

imrtant law addressing a very important problem; namely, the prlewhere hospitals were turning away poor and uninsured patientshoame in for emergency care. anthe idea was that can't happen. we can't allow hospalin this country to turn away poor and uninsured people in emergencies. but their theme is that the law was not designed contextually to deal with specific -- with aboronr other specific kinds of care. and so they make a textual gument, but i think they also make a broader contextua argument about the whole idea of what was going on in 1986. and i want to make sure -- i don'think that's really come up too much. i want to keure you respond to that. general prelogar: i apprecte having the chance to address that. so at the outset, i don't think they can square that theory with the text of the statute, which says, in no uncertn rms, here is the fundamental guarantee. if you have ergency medical condition and you go to an er in this count, ey have to stabilize you. they have give you such treatment as may be necessary within reasonable medical obility to ensure that you don't deteriorate. d, yes, congress did not provide a reticulated list of

alpossible emergency medical conditions and all possibl treatments, but it was very clear that congress set a baseline national standard of care tenre that, no matter where you live in this country, you can't be declineseice and the -- the urgent urgent needs of your medical condition addressed. d,ou know, it would be no different if the state had come out and decided to ban epinephrine. that's the singaray to treat anaphylaxis, a severe allergic reaction. that would viola t statute, and we would be up here making the exactly same arguments, because congss didn't want that. if you have anaphylaxis and you go to eanywhere around this uny, they're going to give you epinephrine. and congress mandated that. and i don'e anway to try to draw lines around to exclude pregnancy complications in the very narrow but tric circumstances where the only way to address the woman's condit and prevent material

pregnancy to end.for the justice kavanaugh: thank you. chief justice roberts: justice barrett? justice barrt:o, general, i -- i understand the primary ffence between emtala and the idaho statute to be this healthth -- that idaho focuses on the risk of life, but the federal government says that emla -- 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'also the difference between necessary to prevent deatversus the health concerns would be reasonably expected to ocr. so i think that that is a stanrdhat builds in a little more space for doctors to take action. justice barrett: got it. is the federal governmt are of any state, other than idaho, that has a law that doesot take health into account? general prelogar: there are six other states that have severe ortion restrictions without a health exception. so i think that those are the primary categoryf ates we're concerned about here. justice barrett: thank you. general prelogar: i should -- i should make clear that there some pending judicial challenges in those states, and so their laws are not always enforceable or in efctight now. justice barrett: besides texas, has the federal government -- has the federal government brought suits simir the one brought in idaho and texas in

any tse other states? general prelogar: to be clear, texas was t r -- justice barrett: right. ok. general prelogar: -- affirmative litigation. theyueus. but we have not brought affirmative litigation in other states. ani think it's -- this case has been on a course and idaho's law was particularly severe cause 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 bes: justice jackson? justice jackson: gener, petitionerels pretty heavily on clear statement rule principles. and i wonder wheth y might comment on my thought that those principles actually cut against them in the. as you said, congress set a bali national standard of care. it has said, in no uncertain terms, that the hoit must provide stabilizing care to people experiencing emer medical conditions. there was no, as yo've said, you know, particular conditions -- or particular tremes talked about, carved out, et cetera. so if a clear statement is requir, uldn't it be the requirement mption -- of exempting abortion?

justice alito has talked about mef the exemptions for unborn child. none of them we'd like an exemption. nothing that is this clear national standard of care. >> i think congress was clearly requiring stabilization. it wasn't exempting particular conditions or particular types of treatment. this court has said there is no canon of duluth -- dona re. when you have a provision like that, the fact that you don't have a specific enumeration of e of its applications does not mean you should read in some side of -- some kind of implici exception. what i think we would need see is a clear statement that congress meant for you to not provide abortions.

ihink it is important to recognize that every relevant tor has understood it this way omhe beginning. then the agency's position all along -- we not adoina new position. priders have understood it. ey have always provided life-sustaining and aly stating pregnancy termination consistent witantyler. congress recnid it in the affordable care act. and i thk ere is any argument to be made that understood what congress is doing the statute. >>ha you, counsel. quick thank u,our honor. and tell it takes state law practice standards as they find them. as justice gorsuch noted, that is what section 1395 said. in the vaccine mandate case that

was referenced, that is what the general's office told thisou when is at 1395 does not reqre -- does not allow federal officials toicte particular treatmts for particular cases. that is what they are trngo do here with -- it is -- it is confirmed by subdivision f. anything that could codif this, to justi jkson's colloquy at the end, that is the point. you do presume that sta l continue to operate alongside impala. you don't esume the opposite. it is supportedy the operatio mual. that is the rosetta stone of intel enforcemt. it tells doctors, it tells cms enforcement agtsn the ground that you considewh is available by referencing what is in the scope of that doctor's lins that is exactly what we are saying. it is also specifically directed

it requires hospitals comply with state law. that directs hospitals to quire their hospitals staff. they total lack any case history that would support the administration'seeng. this always was understood to be the case will you think we woul find those 115,000 instanc. a single instance where state law was overridden. and finally, the text. the text qualiesnd tell us stevere-- stabilization requirement. we know they can perform open heart surgery and we know debtors can draw blood. it is not just a plain mandate devoid of referee state law. we know the word available eve in common usage incorporates

state law. you are just the other day that when considering whether this is available r meless people, it is in a physical and legal sense. there is a physical qstn and a legal question. opioids e available in the hospital. th a on the shelf, physically there. there is 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 tl suppose it we a rieved to hear that. inconsistency of thes the utter administration's meeting. if the establishing requirement is done on tt to overre conscious protections, and it cann bso specific and

include aequirement that is in direct conflict with state law. those two do not drive. this court does not lately find a direct conflict. congress must speak clearly. it has not done so here. thedmistration's position ultimately is untethered from any limiting principle. but i think we heard that. there is no way to limit this to abortion. there is no wa to limit it to idaho. they are 22 at with an abortion law on the books. this isn't going to end with id the six states because althe states that have abortion regulations define the health and the emergen exception narrower than m tele does. this question will come up in state after state after state. it inolimited to physical health. i know they say there is no circumstance inhich a medical coitn can require stilization within abortion. now he is just fighting with the american psychiatric

association. that is not consistent. it isn't limited to an tele. you will point out the major spdi because implications that are at play here. we recognize this is usually concerning if the federal government can payrivate actors to buy the state law. in by enumerated powers. i think they admted that. the court does not have to answer that question by our read