>> tell me what democracy looks like. >> this is what democracy looks like. >> tell me what democracy looks like. >> this is what democracy looks like. >> our body, our mind, our decision, our court. our bodies, our lives, our decisions, our court. [crowd cheering] >> i don't care if -- [ indiscernible]

we come together in communion. everybody come on in here. ♪ everybody come on in this house ♪ >> in the consolidated case. mr. turner? and if it may please the court., putting in a centuries old foundation of stateaw states have always been responsible for lensing doctors and setting the scope of their professional practice. it works preciselyse states regulate the practice of medicine. nothing reir doctors to ignore the scope of their license and o medical treatments tt olate state law. three statutory provisionsak this clear.

first, the medicare act's opening provision prevents the federal government from controlling t rtus of medicine. second, bdision f in emtala codifies atatute against state medical regulations. third, emtala' a stabilization provision is limited to available treatment depending on the medical staff's licen. illegal treatments areot available treatments. combine that with the need for clear, unambiguous spending clause provisions, and the administration'reading becomes wholly untenable. the misreadin lacks any limiting princip if er cts can perform whatever tatnt they determine isropriate, doctors can ignore notnly state abortion laws but state regulations on opioid use and informed consent requirements. it leaves emergency rooms

unregulated under state law. its surprising that no court has en such an expansive view. til dobbs, nor had hhs. everyone understands that licensing laws limit medical practice. available to perform open heart suand about or the need no maerer knowledge. the answer doesn't change just cause we are talking about abortion. the court to reject the administration's unlimited readingtala. welcome the courts's questions. >> normally when we have a preemption case there is some reship between the parties. is the state being regulated by the federal government unde emtala, or is the state engaged in some sort of quasi-

contractual laonship? >> the state, idaho, for example, has no ste spitals that participate with the emerrooms in emtala. there isn't even a quasi-relationship. thparty is being regulated by emtala here is doctors. the armstrong issue, we think that is a significant questio it wasn't part of the question presented. we think thes brief raises icant questions and deals with that argument well. here it is a direct conflict between idaho's law and emtala. your honors, going to that direct conflict, tnk if you consider the statute of availability -- >> before we do that, can i step back and get your understanding of the statute? you made some represons of how you see it working. let me tell you what i and

then you can tell me if you agree, disagree, or otherwise. i think here are two things that atty plain on this statute. one is that emtalaout the provision of stabilizing care for people who are exping emergency medical conditions. that is one thing the stas doing. it is operating to displace t prerogatives of hospitals, states, orver with respect to that fairly narrow slice of the health care universe. the idea of emergency medical se is one small part of the overall provision of h care. what that means is when a hospital wants to only provide stabilizing care in emergencies for people who can pay for it, ample, emtala says no, you

have to stabilize anyo is experienci an emergency medical condi or when a hospital wants to provide stabilizingrements to people who are experiencing only certain kinds of emergency conditions, emtala says this is the list of conditions and you have to provide stabilizing care for those people. to govern all health care in our state and we say that only ain kinds of health care can be given to people who are excing emergency medical conditions, we don't want whatever treatment only certain kinds of treatemtala says, no. we are directing as ar of federal law when someone presents with a medical condition they must be assessed and the hospital must do whatever is in its capacity to stabilize them. is that your understanding of >>artially, your honor. we agree emtala imposes a federal stabizion requirement.

the question is, what is the content of that stabilization requirement? you have to reference state law. >> i think what you just sa important. when you concede that emtala imposes a stabilization reirent, it is the statute, the federal government terfering in the states health care choices. in, is on its face a statute that says it inoall the state's way. there are federal requirements, a ruiment to stabilize emergency patients. you agree with that? >> w agree emtala's purpose was owed to bridge this gap that existed in some cases. >> we can take off the table the idea that just because it is the state and health care that the federal government has nothing to say about it. theeral government has plenty to say in this statute? you are right. now there is a questio of what is the content of this

stabilization requirement? as far as i understood your opening remarks, you say if this is left to the ste -- ii'm just looking at the statute, the ate tells you what the content of the stabilization requirement is. it is to provide medical treatment to ensure that no deterioration of the condition is ke to occur if the person is transferred or didn't getare. standard.you it is an objective it is a standard tt early has reference to accepted medical practice. not just wter one doctor happens to think. it is, here is the content of thdard. you have to stabilize. what does that mn? it means to provide the treatmentecsary to assure within reasonable medical probability that no material deterioration occurs. >>et me respond in two ways.

first, the objective standard that you set forth, and that understandg contrary to the administration's. they say it is a totall objective standard. >> as i understand the solito general's brief, it is not up to every individual doctor. this is a standard that is objective and incorporates accepted standards of care? >>he definition that you quotedf abilizing care in the operative provision is also textually explicitly qualified by that which is in the staff and facilitiesvailable. >> that qte right. it says whin the staff and cities available at the hospital. if you look at that ngge, it is clear that that is not a reference to what state involves.

the stafanfacilities available. if y d't have staff available to provide the medical care, iuess you can't. provide the medical care. if you don't have theacities to provide the medical care, you can't provide the medical care. the transfer has to take place for the good of the patient. it is e ailability of staff and facilities. it's do you have the right doctors, do you have enough doctors, do you have the rig facilities? or is it better for the patient to transfer them to the hospital a few miles away? >> you are right. do you have the correct docto? how do you answer that except with reference to state licensing laws? >> you can't do that. the point that i was trying to ke is the federal mandate is to provide stabilizing care for emergency conditions regardles of any other directive that the state has or hospital has that would prevent that care from

being provided. that is the work of the statute. >> that is not even hhs's conclusion. in the state operation manual on page 36 of the briefit defines what makes a staff person available under the state. >> they are not available if state law does not allow this procedur >> they are available to the extent that they are operating within the scope of their medical license. that is r gument. they want to draw it far more narrow to physical availability. we agree that that is a component, but there is a legal component too. >> the problem we are having preemption on its head.tting the whole purpose oprmption is to say that if the state passes a law that violates federaaw the state law is no loer effective. sothere is no state licensing law that would permit the state to say, don't treat

diabetics with insulin. treat them only with pills, metaformin. a doctor looks at a patient and says without insulin they will get seriously ill, and i dot know what that means under idaho law because we will get to that is a better treatment.at this federal law would say that you can't do that. medicallyccted, objectively medically accepted standards care require the treatment of dietics with insulin. medically ac obligation of doctors when they have me with certain conditions that may not rulin death, but more th likely will result in very including blindness for some.

for others, e ss of organs. for some, chronic blood strokes. idaho is saying unless the doctor can s, in good faith, that this person is likely as opposed to serious illness they cannot perform the abo i don't know your arguments about state licsi law, because that is with this law does. laws can't take out objectiveg medical conditions that could save a person from serious injury or death. >> i tnk that there are two ucl responses to your point. t begin with the preemption poin subdivision f, section 1395

hhs, the federal governmentan the court the opposite. >> it says you cannotrept unless there is a direct confli. if objective medical care requires you to treat women who present the potential of serious medical complications and abortion is the only that could prevent that you have to do it. idaho law says the doctor has to determine not that there is merely a serious medical condition, but that the person will die. that is a huge difference, counselor. >> we agree there is daylight between how the admation is reading emtala and what idaho's defense of life act s. we agree there is a controversy here. >> no, there is more than a ntroversy. what you're saying to us is if emtala doesn' have preemptiv force, and not just idaho, it

has a saving condition for abortions when it threatens a woman's life what you are saying is that no state in the nation, andhe are some right now that don' even have that as an exception to their antiabortion laws,ha you're saying is there is no deral law on the books that prohibits any state from saying even if a woman will die you cannot perform an abortion. >> i know no state that doesn't include a lifesaving exception. >> some have been debating it at least. your theory of this case leads to that conclusi. >> i think our point is that emtala doesn't dress -- >> could i hear your answer? >> the administration's ce on aard like best clinical evidence or some national norm,

i think that is fraught. what it is saying is the text itself doesn't address what stabilizing treatment is required. you go outside the tex professional standards floating outhere that may change day-to-day, and that boils down to a conflict between what it says and idaho law says. >> i'm not sure that i understand. looking at this from a broader pepeive it seems emtala says at you must provide whatever tment you have the capacity, staff and faciliti provide to stabilize patients experiencing emergency medical conditions. idaho law seems to say you cannot providehatreatment and less so is necessary to ent a patient's death to the extent the treatment involves abortion. isn't that a direct

conflict? you mustn certain situation the federal government is saying and you cannot if it involves abortion says ah >> the example highlights the reason why. rse might be available, may even think she knows how to. under e flat provision in emtala, the administratn's reading would say to call her into action, put her in e operating room, and open her up. >>daho would say that no, that is a conflict. let's say the position is the nurse could do it. are you suggesting federal law would not preempt a state law th says no, she can't? >> whether federal law could do ats a different question then if emtala does do that. it is clear it does't. it is like t case, the controlled substances act, the court noticed the provisions rely un d assume a medical

profession being ruled by stat powers. emtala is a four-pagetate. to address the care for every conceivable treatment -- >> it definitelyidn't address the standards of care. it left that to the dil community. congress w not going to address every treatment for every condio it said, you do what is needed to a non-deterioration. guess the question is, do you concedth with respect to certain medical conditions an abortion is the standard of care? >> no, because standard ofare -- i should say, in idaho there is a lifesaving exceiofor certain abortions. that is the standard of care. it is necessarily set and determined by state -- >> you have to concede with

respect to certain medical ndions abortion is the stdard of care because your owstute as interpreted by your own court acknowledges that when a condition gets bad enough such that the woman's life is in peril, then the docre supposed to give abortions. the reason that is true is with respect ctainar but extremely obouy important conditions and circumstances, abortion is the accepted medical standard of care? >> yes, that was my point. there is a life-saving excepon under idaho law. >> now thestion is, is it also the accepted standard of care when, rather than the woman's life being in peril, the woman's health is in peril? let's take all tse cases are rare, but withithe rare cases there is a significant number where the woman is -- her

life is not in peril but she will lose her reproductive organs, she will lose the abily have children in the future, unless an abortion takes place. that is the categy of cases in which emtala ss,y gh,f course the abortion is necessary to ensure no material terioration occurs. yet, idaho says, sorry, no abortion here. the result is that these patients are helicopters out-of-state. >> hothetically, it is a very difficult situation. these situations, no one is arguing they do not raise tough medical questions that implicate deeply theological and moral questions. idaho, like 22 other states, even congress and emtala recognizes trewo patients to consider and that is tough when you have competing interests.

that would be a good response a federal law didn't ke position on what you charactes a tough question. the federal law does take a potion. it says, you don't have to wait until the person is onheerge of death. if the woman is going to lose her reproductive oan that is the part of the hospital to on stabilize the patient. the way to stabilize patients in these circstces, all doctors agree. >> idaho law doesn't require a patient to be on the verge of death. there is no medical cert requirement. >> these are hypotheticals that are true. hold on one second. you can e whether idaho's exce -- we go back to the pointhat even if idaho law fully complies with federal law. you have a pregnant woman who is eay into her second try

semester at 16 weeks. she felt a gh of fluid leave r body. she was diagnosed. the doctors believe that a cal intervention to terminate her pregnancy is eded to reduce the possibility of -- real medical possibility ofxpiencing sepsis and uncontrolled hemorrhage from the brokenac. this is the story of a real woman who was discharged in florida because the fetus still had fal tones. the hospitd she is not likely to die, but therere going to be serious medical mpcations. the doctors refused to treat he bause they could not say that she was dying. she was horrified and went ho the next day she bled, passed out, was tnklly taken to the hospital where sheecved an abortion because she was about to die.

atou are telling us is that that is a case that idaho the day before would have said it is ok to have an abortion? >> under idaho's lifesaving exception a doctor could, in good faith -- if the doctor could in good faith medical jument determined -- >> i am king you. for doctors said i couldn't say she is going t d. your doctor said i cannot with medical certainty say that she is going to die, but i do know she is going bed to death if we don't have an abortion, but she is not bleeding it. -- bleedg yet. >> theoctor doesn't need to have medical certainty. >> the council will answer yes or no. he can say there is likely to be a very serious medical condition? let me go to another one. imagine a tit who goes to the e 14 weeks.

an abortion is accepted. she was in and out of the hospital up to 27 weeks. this particular patient, they had to delerer baby, her baby died, she had a hysterectomy and can no longer have children. you are telling me that the doctor could not have done the abortion earlier? >> again, it goes back to whether a dooran in good faith medical judgment -- >> that is a lot for the doctor to risk. >> when idaho law changedo make the issue if she is going to d onot or have -- or have a serious medical ndition, that is a lot of daylight by your standards? >> i'm kind ofhocked, actually. i thought your own expert said that these kinds of cases are covered and you are now saying

they are not? >> i am not. >> you are hedging. sotomayo asking if this would be covered or not. >> those doctor said that if they were exercising their medical judgment they could in good faith determine that lifesaving care was necessary. that is my point. >> some doctors reach a contrary conclusion is what sotomayor is asking you. if they reach the conclusion that the legislature's doctors did, would they berocuted under idaho law? >> no. if they reached the conclusion that dr. reynolds and dr. white did >> whatf the prosecutor thought differently thinking that no good faith doctor could draw that conclusion? >> that is the nature of prosecorl discretion and it may result in a case. >> has put out any kind of

guidance? hhs puts out guidance about what is covered b law and what is not. do idaho? >> there are regatns. i think that the guiding star is a lon detailed treatment by the idaho supreme court of taw. it made clear, the court made clear there is no medical certainty requirement. you don't have to wait for the mother to be facing death. >> thank you, counsel. wh happens if a dispute arises with respect to whether or not the doctoras within the confines of idaho law or wasn't? is the doctor subjected to review by a medical authority? exactly how is that evaluated it is an obvious con if you have an individual exception for aocr. is that covered by your

submission that nothinindaho law prohibits complying with emtala? who makes the decision whether or not something is within or without? >> i imagine there are two ways that the law can be enforced. the board of medicine has oversight over a doctor and the idaho supreme court made it clear that the doctors medical judgment won't be judged based on what a reasonable doctor wouldo that is not the standard. >> what is the standard? >> the doctor's good faith medical judgment, which is subjec >> that is not subject to review by any medical board if there is a complaint against the doctor that his standards don't comply -- he is the only doctor at this particular emergency room with his own standard? >> you may consider another doctor's opinion only on the question of whether the pre-textural medical judgment was not a good faith one.

>> well, i would think that the conct good faith medical dgnt must take into account some objective standards, but it wod leave a certain amount of leeway for an individual doctor. that is how i interpreted what the state pre court said. you have been presented here today with very quick summaries ofas. asked to provide a step judgment what would be appropriate in those paicar cases. honestly, i think you have been given an opportunity to answer so othe hypotheticals. would you agree with me that if a mic doctor, who is an expert in this field was asked bang, bang, bang, what would you

do in these particular circumstances which i will enumerate. the doctor would say that i tice medicine. i need to know more about the individual case. would you agree? >> i would. it doesn't knee-jerk that an abortion is the standard of care. it says that management is often the standard of care. these are on the ground with the doctor as he is accessing them with h mical judgment that he is bringing tor but he is not constrained by medical idaho law. >> thank you. >> there is a dierence between stabilizing a person who presen aus medical condition requiring abilization and a person who

pren with a condition, quoting idaho's words, where th ere is a condition --poses a great risk of death to the pregnant woman. do you b that there is daylight between the two? there will be some women o present serious medical conditions that federal law would reque be treated who will not be treated under idaho law? >> i disagree withhat. idaho hospitals are treating these women. they are not treating them with abortions necessarily. >> that is my point. they will present with a seris medical condition that cts in good faith cannot say will present death but will present potential loss of life, -- potential loss of an organ or

serious medical complications for the woman, they cannot perform those abortions? >> if that hypothetica exists, and i don't know aondition that is so certain to result in the loss of an organ but also so certain not to transpire with the death, if that condition exists, yes, idaho law says that abortions are not allowed. >> all of your legal theories re ous holding that federal law does not require, cannot preempt state law on these issues when i asked theuestion if a state defines likelihood of death more stringently than idaho does, you would say that there is no federal law that would prohibit them from doing >> i would say emtala does not contain a standard -- >> there is no standard of

care. in your briefing you made the position here and almost argue now that their position that federal law requires stabilizing treatment and not equal treatment of pies, which was a posiou took in your brief. you seem to have backed off of it here. you seem to agree that federal law requires some stabilizing condition whether or not you provide it totr patients. but i have befs that say hhs has filed -- pre-dobbs -- th hhs, in countless situations, cited hospitals for discharging patients whored an abortion as a stabilizing treatment.

-- did that topic in the affordable explicitly said that nothing in the affordable care act shall be construed to relieve any health care provider from providing emergency services as required by state or federal law. medical prode told us that for decades they haveerstood both federal law and state law to require abortions of stabilizing conditions of people prenng serious medical risk. lower courts, there are cf lower courts saying thatou have to provide abortions. this is not a post-dobbs unprecedented position by the government. in footnote 2, 1 hundred 15,000

rows of enforcement instances. >>obbs this wasn't much of a question. eris hhs guidance and at asthree cases in which it was invoked. th fact that we didn't have -- hhs didn't have to do it much pre-dobbs doesn't make their positi -- >> my point is more fundamental. the e no instances. not just on the issue of abortion, on any ins or hhs told a hospital that you have to provide a treatment contrary to state law. this isn't just about abortion. >> now we are back to that. thank you. >> practicing medicine i hard, but there are standards of ce? >> one with respect to abortion is in ceaitragic circumans, as you yourself, your own state law acknowledges,

where a woman's life is in peril and an abortion is the prriate standard of care, right? emtala goes further. it says that the appropriate standard of care can't onlbe about protecting a woman's life, it has to be about protecting a woman's health. that is what emtala says? >> no, it doesn't. it defines emergency medical condition with bader set of triggering condition b the key question is, what is the stabilization reirent? that is qualified by the availability term. the stabilization requirement is written in terms of making sure that a transfer would not result in a mateal deterioration as to the emergency condition. nothing about having to be at dea's door? >> i think that's right. >> there is a standard of care with respect to that on

abortionsoo. if a woman is going to lose her reproductive organs unless she has an abortion which happens in certain tragic circumstances, an doctor is supposed to provide an abortion? >> emtala does not contain a anrd of care. >> do dispute that there is a medical standard of care that wh a womans going to lose her reproductive organs if she doesn't have an abortion that i doctor would not say that an abortion is the appropriate standard of care in at situation? >> i dispute a uniform standard of carel states. idaho set its own standardf care and has drawn the line on a difficult question. it is inconceivable to me that congress attempted to answer this complicateduestion in four pages of the u.s. code. >> congress said, as to any ndition in the world if an emergency patient comes in, you are supped to provide the emergency care that will ensure

thatpatient does not see a material deteriorati itheir health. that is what congress said. the abortion exceptionalism is part of the state saying that we will accept that with spt to every other condition but not with respect to abortion. we will not comply with the standard of care that doctors have accepted. >> abortion is not exceptional. there are numerous sewhere states intervened and said the circumstance for this condition is xot. opioids in new jersey, a doctor cannot stabilize chronic pain with more than a five day supply of opioids. in pennsylvania it be seven. other states, no limit. emtala requires that t limitatis e wiped out and you impose a national standard. ther are numerous instances ere states are comingand saying, in our state the acce of medicine must conform to this standard. idaho has done that with abortion, opioids, marijuana

use. there e untless examples. >> in yr theory, although the supreme cot s narrowed the reach of your statute, your theoryou apply even if it hadn't. it would apply to ecpi pregnancy, even if there was not a deatexption. all of your theory would apply no matter what idaho d, wouldn't it? >>eah, i think that the answer is emtala does not speak to that, buthe are background principles and limitations lik rational basis review -- >> your theory is that emtala preempts none of it. that is state tomorrow could say that even if atis around the corner, a stateomrow could say that even if there is an ectopicregnancy, that is the choice of the state and emtala hanothing to say about it? >> that understanding a humble one with respect to the federalism role of states as the

primary rever for their -- >>. than you. >> i just wanted to understa some of your responses, or efforts to resndo some of the questions that we heard today. >> as i readou briefs, you thought that idanks that in cases of ectopic pregnancy, for example, that an abortion is acceptable? the example of someone who is not immediately going to die but y at some point in the future, that would be acceptable? >> it goes back to the good faith medical sd. yes, if doctors cannot determine in good faith that death is going to afflict that woman, then no. tomorrow, next week, or a month from n >> the notion of delayed care is

not consistent with the idaho supreme court's reading of statute and what the statute says. >> the good faith, that ntls. that is the end of it? >> absolutely,t . >> what do we do with emtala's definition of individual to include the woman and as the statute says the unborn child? >> we are not saying that emtala prohibits abortions. for example, in california stabilizing treatment may involve abortions consistent withhathat state l allows its doctors rm. i think our point with the unbornhild amendment of 1989 is that it would be a strange thing for congress to expressly amend emtala to require care for unborn children. it is not ju when the child and mother are experiencing

active labor. emgey medical treatment requires care when the child se has an emergency medical condition regardless of what is going onit the mother. it would be strange for congress to have regard for the unborn child yet also be mandating termination of unborn children. >> i just want to focus on the actual dispute as it existsow today between the government's view of emtala and idahoaw. idaho law has changed since t time of the district court's injunction, with the idaho supreme court a crifying change by the idaho legislature. you say in your reply brief, and thmoe reply brief, says each of the conditions identified by the solicitor general, where under their view of emtala an abortion must be availab, u

say in the reply brief that aho lawn ct allows an abortion in each of those circumstances. you go through them on pages eight and nine of the reply brf,ach of those condion is there any condition you are aware of where the solit general says emtal requires that an abortn available in emergency circumstance where idaho w,s currently stated, does not? >> certainly, the administration maintains that there is such conditions. my view is that, yes. i will reference about five from the brief. the health condition situation. the mtahealth says that is not on the table, not a scenario where abortion is the only stabilizing care required. i'm not surehe that construct of only stabilizin care comes from. it is the dr. determination that controls, not this imposed only

reent. be that as it may, the american psychiatric association, there are no professional organizations that set aborti as the standard of care, the eran psychiatric association says abortions are imperative for mental health conditions. that sounds like a necessity to i don't know how if aoman presents at seven months pregnant and says i am experiencing sev depression having suicidal ideation from carrying this pregnancy for that wouldn't for the reading be the only care. >> every circumstance desc by the administration declaratioderibes life-threatening, under which idaho would allow an abortion to the ninth circuit panel said?

>> we agree because the conditions intied in the affidavit were all conditions that would fit under exception. that is telling becau tse doctors when put under oath in anffidavit couldn't come up with any harrowing circumstances. i think with the government does not want to talk about is the mental health exception. i don't know how youan read their unrsnding -- other than the mental health,if which we haven't had a lot of briefing about, is there any other condition identified by the solicitor general where you think that idaho law not allow a physician in his/her good faith judgment to perform an emergency abortion? >> not in their affidavit. they maintn netheless that when you compare the definition of what an erncy medical condition is, the broader definition of lifesaving idaho law. >> when we get down to the

actual conditions listed, the examples that justice sotomayor was going through, you said in your brief that each of the conditions identified by the government idaho lows for emergency abortion? >> i think that the injunction here -- >>t does that mean for what we are deciding here 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? >> i will say twos. the real practical first spse is that idaho's is under an injunction that includes a broad requirement that ps -- >> i understand that. that may mean there shouldn't be an injunction. i take your point. what is your second? >> i don't know this court can make the determination on whether or not there are any real-wonditions without first answering the statutory

interpretation question of what emtala stabiliti require actually requires. that has tbe addressed not only because -- >> i was picking up on your reply brief. you're the one who said that there is actually no real daylight here in terms of the conditions. i am picking up on what you all said. >> i understand, your honor. >> i guess i don't understand why we have to address the stabilizing condition if what you is that no one has been to identify a conflict. on the menalth thing, i chec footnote 5, idaho badly rors in asserting that coing to its terms it would turn emergency rooms into federal abortion enclaves by alloregnancy termination for mental health concerns. t is the only space that youan identify where idaho would preclude an abortion and emtala would require one and the

government is saying that no that is not so, what is the conflict? >> of course we think that we win when yofind no factual conflict -- >> but why? why are you here? ho oa second. you are here because there is an injunction precluding you from enrcg your law. if your law can fully operate because emtaldo not curb idaho's authority to enforce its law >> it cannot under the injunction. >> as it conflictsit emtala? >> it is mucbrder than that. this is based on the crawford injunction by the administration to avoid an emergency medical condition not in the face of an emergency medical condition. idaho's law cannot operate when a doctor determines that a condition might need to be avoided that hasn't yet

presented . that is far broader than the stabilization requirement under emtala because the stabilization requiremt is only triggered when there has been a rmination. >> i would like to hear the solicitor general'onse to that. me ask one other question about the mental health consideration, because i can unde idaho's point that a mental health exception would broader than ida l and have the potential to expand the availability of abortion far beyo what idaho law permits. requirement only exists until transfer is possible. it is hard for me to see how wi mental health condition that that could not be stabilized borneeding to transfer? that is where the idaho hospital could say that you're stable, not immediately going to be suicidal, we will leave you in the care of a parent or a partner who will then seek appropriate treatment >> tt exible view of

stabilizatn is different than thenment's rigid view of stabilizatn which isf an emergency medical condition lls for an abortion it has to be provided right thd then if it is available in this limited sense. the stabilization continuum that you are talking about, i agree it is built into emtala. >> it says until transfer. the transfer provision kicks f the hospital is unable to ste. if a patient presents at the hospital in that hosta has the capability and availab to stabilize a condition. in the case of mental healt invite the general to tell me that i have it all wro a the mother that i described would t ed to receive stabilizin that circumstance andould be transferred to a psychiatric hospital or something and that would not constitute dumping unr their reading, i don't see how that comports with everything that they've said about the rigid view of stabilization. if the condition calls for it and the hospit can do it, it has to be done there and then. >> doeo have any

conscience provision? >> it does. i think that is a key point, your honor. the mistration told this court that individl doctors are never required to perform an abortion fat i could tell, but that doesn't extend to hospitals. in the case ofatlic hospitals, and there are hundreds of them treating billions ofnts every year, under the administrations reading catholic hospitals are now rovide abortions. i don't know why they say that s the line that they draw between indivial doctors and religious institutns >> justice jackson? say that idaho law permits you everything that the federal la requires. i am trying tostand that.

it seems that if that is the case, why couldn't emergency om physicians in idaho ignore idaho law and follow the federal standard? if the state is doing exactly what the fedalaw says is required, it is ok by idaho, fine. we set idaho aside, do with the feral law says, and we all go home. >> the idahoeang is that there is no conflict and doctors don't have to he choice of do i follow emtala or -- >> your representation on behalf daho is if an emergency room physician in idaho follows emtala in terms of when abortion is required to stabilize patient, they will be complying with idaho law such that there is going to be no prosecution and no probl? >> yes. they have to comply wh idaho law to comply with emtala. >> n i am asking if they

mp witha, will they necessary ve sisfied the requirements of idaho law? that is what you seem to say in and justice barrett.kavanaugh i want to make clear ifis the position of the state. >> the scope of emtala stabilization reqrent is necessarily determined by idaho law in this case. >> no, you are saying if they follho law than they will be following emtala law? no, it's not. i would like forouo entertain the other possibility. you seem to be saying that every situation inch the united states says, here is a stabilization situation that the united states would say that the person has to have an abortion, or the physicians would say that we are following emtala and abortion is requir, i thought that you said idaho law would

alsohat that is the situation in an abortion is alled if that is the case, it seems to me that there is no daylight, no conflict as you said. is because idaho law is in full compliance with what the federal law is saying. we are getting it wrong, you are saying. the death thing is that what we what we mean this whenever it is necessary to stabilize a patient who is experiencing deterioration nasa federal law requires >> i think that i understand the point that you are making. the best way tt can think of it is emtala' a stabilization requirement ruis medical judgment to determine what is theppropriate stabilizing treatment, right? w does a doctor exercise mecal judgment? is training, experience, reference to standards of care that are nat but state law standards as >> thaisot just something

that you' coming up with. ustice kagan said at the beginning, emtala tells the doctor how he is supposed circumstance with reference to the medical standards o concerning when a patient is deterioratg in anency condition situation. if that is the standard in emtala, are you representing that is exactly what idaho is saying so that all of the doctors, all they need to do is follow emtala and they will be fine under idaho l >> of course we are saying that idaho doctors need to comply with emtala. the question is, how do doctors comply with emtala? your point.at i understand you are saying that idaho could actually be requiring more and the federal law has to make them or do what idaho says. >> emtala itself codifies the presumption of a backdrop of state law. there are background principles

here. >> let me explore that with you for just a second. about preemption.is case was thathentirety of our preemption jurisprudence is the notion that the fedal government, in certain circstces, can make policy pronouncen that differ f what the state may want or what anyone else mayant. the supremacy clause says what the federal gornnt says takes precedent. you have been saying over and over tha idaho is a state and we have health care policy choices. we have set a sd of care in the situation. all of that is true, but t question is what extent can the federal government say, no. in this situation our standard is going to apply? that is with the government is saying. i don't understand how consistentour preemption jurisprudence you could be sangtherwise. >> i don't think the question is necessarily what can congress

do, but what can congress do with them paula -- with emtala. they said the federal government shall not control the practice of medicine. emtala is self says that state laws are not preempted. >> state lawarnot preempted to the extentdirect conflict. we are identifying a direct conflict. why is preemption not working there? whether there is a direct -- let mee clear. the text to us is very clear. it is an easy question. got to overcome l of other hurdles. >> i hear you saying two things. everything the f government requires, we allow, icthe d.c. physicians for hun ghts who looked at idaho's law and setprevents a lot of things in circumstances which the federal government would require them -- they disagree with you on the facts anyway, you say no conflict

because you a aowing exactly what the federal government allows. ansay no conflict because thfederal government in this situation wanted states to be able to set the standard i guess i don't understand how that is even conceivable, given this standard, given this statute that is coming in to displace. >> if i cant convince you on this section, let me add a third. the defending clause condio nature of this requires congress to speak clearly and unequivocally that it is imposing a abortion mandate. >> doesn't that make abortion different? they say provide whatever is you are saying they have to provide whatever is necessary including abortion. that is the only way that is taken account of here? >> i'm saying that when wgo and look at the phrase available and what it means,

administration is saying they are adding t consistent with steaw. we are saying under the clea statement, preemption, what congress would need to do if it wanted to preempt a very traditional area of state law is to put a tag regardless of state law. that is missing. >> thank you. >> thank y counsel. general pre-letter? >> may it please the court, emtala's promise is simple and profound. no one can come aemergency room and need urgent treatment and be denied necessary stabilincare. this ce is about how that guarantee applies toreant women in medical crisis. se tragic cases, women ffer emergency complications that may continuing a pregnancy a gravehrt to their lives or their health. woman'amotic sac has ruptured prematurely, for

example, and nee iediate treatment to avoid risk of infection that cld cascade and risk hysterectomy. won with severe preeclampsia can't risk kidney failure that could require lifelong dialysis. in cases where there is no other way to stabilize the woman's medical conditn and prevent her from deriating, impala' is plain text requires tt e be offered pregnancy termination as areatment, and that is how this law has been understood and applied for decades. that usually poseso nflict with state law. even states atave sharply restricted abortion after dobbs generally allow extensions to safearthe mothers health. but idaho makes ternaon a felony punishable by years of imprisonment and if necessar death. my friend acknowledged today there is a d-link between that standard and theecsary treatment that emtala would

require. the supreme court specifically contrasted aecsary to prevent death exemption with a prior idaho law that had a health exception that tracked pala. the situation on the ground in idaho is showing the devastating effects of that gap. the doctors and women of ido are in an impossible position. if a woman is experiencing an emergency that is not yet facing death, doctors either have to delay treatment and allow her to materially deteriorate, or they have to lift her out of the state so she can get ergcy care. one hospalystem in idaho says right now it is having to transfer pregnant women in medical crisis out of thetate about once a week. that is untenable. none of these interpretations fit with the text. they have tried to make this case about the broader debate for access to abortion in cases of uand pregnancy, but that is not what this case is about at all.

i was ce is enforceable in almost all of its applications, but in the narrow circumstance of grave medical emergency, idaho cannot criminalize essential care. i welcome the court's questions. >> are you aware of any other spending clause thatreempts criminal law? >> with respect to criminal law in particular, justice thomas, we have a string of cases in our brief at page 46 that reflect times wereheourt has a ne the preemptive force of spending au legislation, especially in legislation wereunding applies to public parties. that could include the coventry health case. but i am not immedialy recalling how that would apply in criminal law. the court has not drawn those kinds of distinctions in the suy clause. >>mally, when we have a preemption ce,t i

regulated party who is involved the suit, and they use it as an affirmative defense, for example. in this case, you are bringing acti ainst the state, and the state is not regulated. are there other emps of these types of suits? >> tre are numerous examples whe the united states has looked to protect its sereign interest in situations where they have done what idaho has done here with a law that conflicts. for example,rina versus the united states is an example of that. there are cases where thicot has recognized that the court can pte interest in his preeti action. the court has a long line of cases recognizing that preemption applies in the case of federal funding restrictions and apply to private paie >> even when the party you are bringing the action against is not the regulated party? >> that is correct.

what ihoas done is directly interfere with the regulated parties w he taken these federal funds with conditions attached fm being able to comply with federal law that governs their behavior. this is an essential part oth bargain that the federal vernment struck with hospitals in substantially iesng in the hospital system. but the state s ne is through the oraon of state law you are no lgepermitted to comply with the fundamental stabilization requirement in emtala in this narrow category of cases. >> normally, wouldn't it be the regulated party that would actually be asserting the preemption you are talking abou >> certainly i can imagine siatns, for example, where a regulated rtwould assert a preemption defense in state law is preempted in that it prevents the party from being able to apply with federal law. i'm not aware of president in this court's ca law that suggests that is the only way for the government to protec its sovereign seat. i think that is often a fact

pattern of particular cases. >> i don't understand how your argument about preemption here squares thhe theory of spending clause -- congress's spending clause power. the theory is conescan tell a state or any other entity or person, here is some money or other inof value. if you want to accept i y have to accept certain ndions. ho does congress''s ability to do that authorize it to impose duties on another party that has not agreed to accept this money? >> there are no duties being imposed on ida. it is not required to provide emergency stabilizing treatment itself. the duties are -- >> how can you impose restrictions onhaidaho can criminalize simple because hospitals in iowa have chosen to

participate in medicare? i don't understand how this squares with the torof the spending law. >> it squares with this court' as long line of precedent, cited page 46. >> iavnot had any discussion of this particular issue. but i am interested in the theory. n u explain how it works in theory? >> it is a federal law passed by bo houses of congress, signed by the president. it satisfies the meaningf e supremacy clause. i think the supremacy clause dictates t principle. in a situation where congress has enacted a law, it has force and effect under e premacy clause. at the state cannot do i interpose its own law as a direct obstacle to being able to fulfill the federal funding condition. with this, the conditions for medicare are not enforceable.

>> their absolute enforceable against the hospital. >> then the argument is that the hospital is bound by the state laanhospitals cannot participe medicare at all. we want hospitals to be able to accept medicare funding but not have to face the restrictions that are attached to those funds. that is an essential part of the barg and there is no precedent touprt that outcome. >> i don't derstand how the theory works. but let me n to something else. i'going to try to restate your general theory and i want youo tell me if this is right. i ink your argument is if a woman goes to an emergencyoom and has a condition that requires an abortion in orr eliminate quote unquote serus jeopardy to her quote unquote health, the hospital must perform the abortion or transfer the woman to another hospital whe that can be done. ishaa fair statement of your arme?

>> it includes also serious dysfunction or serious impairment of the bodily function. the other caveat i would make is at it would apply to pregnancy termination only when that is the only possible way to stabilize her and prevent that cascade of health consequences. >> does this apply atny point in pregnancy? >> the pregnancy comes occasions we have focused on generally occur in early pregnancy, often before the point of viability. there can be complications after viability, but there is a standard of care for the baby evenf ere could be severe healthonquences for the mom. >> what if it comes to the point where delivering the baby is n an option? y are not in the third trimester, it is really not the option to deliver the baby. >> if your cteplanning a situation where delirys not an option, ihi in that circumstance the only way to prengrave risk to the woman's health is for the

pregnancy to end, and termination is the oy tion. that requires care in the stabilization mandate. critically in many of these cases, the same pregnancy, location means the fetus cannot suive regardless. there is notoi to be any way to sustain that pregnancy. >> let me ask you squarely the question that was discussed during this return or' i argument. does the term health in impala in just physical health -- in emtala include just physical health or can include mental health? >> there can be grave mental health requirentand emtala couldn't address the undeyi brain chemistry that isaung the mental health issue in the first pce this is not about mental health. is is about treatment by e.r. docts an emergency room. the woman comes in with a mental health emergency if she is pregnant, it would be unethical to terminate her pregnan.

the way you treat mental health is to treat what is happening in the bra you would and mr. antipshocs. >>-- would administer tipsychotics. >> i want everyone to know the federal government position. this health mean physical health or does it include mta health? >> as an emergen medical issue, it can include grave mental health emergencies, but oupotion is that could never lead to pregnancy term and is it termination e that is not the standard of practice to eat any mental health emergency. >> does the term serious jeopardy mean an immediate serious risk or may risk serious consequences at some fute point? >> the standard is whether you need immediate medical treatmt. the question isn the absence

ofmmediate medical treatment are you going to have serious jeopardy to your health, dysfunction of your organs. will your bodily systems start shutting down? it is the urgency of acute care in an emgey room. >> sitas to be immediate? >>he standard is whether these consequences will occur without immediate treatment. it is focused on the interaction between hangome kind of urnt health crisis that takes you to an emergency health crisis and how likely these consequences are to be. >> whether the woman is in immediate jy or whether the woman needs immediate care in order to eliminate jeopardy at aer point -- i understand your answer to behat the woman need not be in immediate jeopardy, but if she does not get the care right away, jeopardy at some future point might take place >> thetatory standard is focused on immediate health risk. its oking at the possibility

that if the woman does not get treatment then and they are -- what wilhaen? what will reasonably be expected our is her organs start shutting down or she may lose her fertility or have other serious consequent is peer there is a temporal link the immediate need for treatment. congssas narrowly focused on this situation. >> do the terms "impairment of boly functions" or "serious dysfunction of any bodily organ or part" refer only to permanent impairment or dysfunction? or does that also refer to temporary impairment or dysfunction? i think it can also refer to temporary impairment, but i don't think you need to parse the two. a pregnant woman in distress might start suffering liver mage or kidney malfunction, and you don't know ex ante whether it will be permanent or not. the instruction congress gave in emtala is you need to stabilize

to guard agahis ry serious health risk. just to understand -- >> just to unrstand the scope of the supremacy clause and how it operesputting aside this case, but the federal government condition the receipt of funds on hospitals that they comply with medical ethics rules provided for by the federal governme, medical malpractice regime, a medical licensing remesuch that effectively allstate medical malpractice laws and licsing laws would be preempted? >> are you imagining regulor action or that congress has crated a federalege? >> you call it. >> i have a broad view of congress's authority to create statutes. i would ask whether congress is operating according to one of its enumerated pows. so i think vy likely congress

could make those kin oa judgment and attac conditions to the receipt of federal funds. >> and it would cover all hospitals in the state and effectively transform the lation of medicine into a federal futi? >> there mhte a point at which this point think -- the court thinks it is encroaching on state pregatives on ways that are inconsistent with constitutional structure, but i don't think we're anywhere close to it. >> do you see bouncing principle? >> i think the bounds would have to come from this court' is case law in terms of federal law. in oregon, the federal government has ahoty to regulate on health and safety. do not think there is any exclusive governments of this ar bthe state. obviously, we need to construct hypotheticals. taking over a state function might be subject to a different function.

>> could they enforce emtala through monetary penalties question mark and you could terminate medicare agreements if a hospital violates? >> generally, the hospital is given the opportuni to come into compliance and toevop a plan to ensure there won't be future emtala olions. it would be extreme sanction to terminate medicare fundi, t that is a possibility. >> there is also a private right of action for emtala violations asel >> yes, certainly mota relief. possibly other rieas well. >> in this case, you brought an equitable cause of action. you did not cit any statute to enforce emla one of the rules in equity, traditionally at least, is that you don't get equitable relief if there is adequate remedy in law. we just discuss there is a pretty reticuledtatute here. when you have a reticulated

stutand lots of remedial options, you do not get equitable relief. >> l me say at the outset that the united states hasong been recognized to have an inherent action in equity through the courts of this nation to protect its sovereign interests. >> you mentioned washington and you mentioned arina >> arizona versus the united states. >>rizona was an immigration case about the border. in washington was anttpt by a state to impose its worr compensation laws on the federal government in a way different from others. i take those points. equity is all about proprietary interest and things like that. do we have that here. >> want to make sure tre are a long line of cases according to this principle, including directly, like debs.

>> do you really want to rely on debs, general? that was not exactlyur brightest moment. >> i do thk reflects the history of this nation and recognizes it is appropriate f the united states to protect its interests in these- this matter. this is an important issue for the united states. this is -- >> i'm try toe out the proprietary interest her it is money d w it is being spent. congressou give you lots of tools. >> i think there a otacle preemption principles that there are functis be served by having the medicare program i place. idaho has directly interfered with the ability of the hospital to accept these federal funds when they are unable to comply with emtala's mandate, with congress''s desire to make sure that no matt who you are in dical need and go to an e.r.,ent you can be stabilized. >> your friend on the other

sides said that your position would require religiously affiliated hospitals with emergency rooms to perform abortions. is he right? >> know, there are federal conscience protections that apply to hospitals as well. the key provisions are in the feldman amendment and coats snow , altugthat depends on the particular hospital. in the 2008 rulemaking on conscience protections, we had never come across a hospital that had a blanket prohibition of termination care. they still have not come across that. that would be honored. you said that applies at the entity level. kim individual doctors in emergency rooms -- do they have a conscience exception? >> yes, they are protected under the church amendments. impala does not -- emtala does not override conscnc

protections. if a doctor has a conscience precon, emtala mns the hospital should have plans in place to honor the individual doctor' is objection while ensuring appropriate sffg. >> does that mean there must be somebody in the emergency room that can provide an abortion? what if there are two, three cts, and they'll have a conscience exemption? >> in that ccumstance, emtala could not override those conscience protectio, t as a matter of good practice, because hospitals want to be able to provide emergency care, they do things like ask doctors to articulate objections into advance so they can be taken into account staffing decisions and who is on call. hospitals have a lot of plans for contingencies. >> are you saying there must be somebo ocall call in a hospital of that sort? >> conditions of participation in medicare requirhoitals to be appropriately staffed to provide emergency tatnt. in a situation where a hospital has not done thaandoes not

have anyone on hand who can provide care -- mbene of the doctors called in sick that day and there was literally no one in the emergency roo or in this case, everyone had a conscience objti. hospital would note le to apply the care. they would ensure there is good governance in hospitals. >> the consequence of them nothing able to provide the care would wt? >> ith circumstance, i think there would likelye out of compliance with the conditions participation that require them to be appropriately staffed. but the question of could you force an individual doctor to step in, the answer is no, and i want to be cleat that. >> the question is whether or noty must have available someone who can apply the procedures required by emtala. what would be the consequence, eventual termination of their participation in medicare? >> that is right. if a hospital was continually failing toavin place personnel to run their emergency

room, i would imagine hhs would work wh at hospital to try to bring it into compliance. if the hospital ultimately is leaving itself in a position whe it can never requote -- never provide care, it would ate e medicare funding agreement. >> i just want to clarify this colloquy. i thought u id a minute ago that the hostahad a conscibjection and therefore did not ove certain care -- that would not nd it out of compliance. >> that is correct. impala would not overridth. >> i have a question about the hyde amendment i gather there would be some situations in which emtala would require an abortion but a height federal funds to be allowed to pay for it. you said emtala reqreother circumstances as well, stabilizing treatment that federal funds can't cover. do you have an example? d am i right about the hyde amendment?

can you give an example? >> you are right about bh things. it is common that hospitals will have to provide care. i will give you in example of a medicare patient who goes in and his emergency cdion means he needs a particular drug that is not covered by medicare benefits still, the hospital has to provide him withtabilizing treatment and give him that medication, even though federal funding is not going to pay for it. this also applies to people who are uninsured, who e t covered by -- it does not matter your circumsnc, whether you can pay, the particula oyour situation. this is a guarantee you can get stabilizing treatment. i nto say i do not think there is any inconsistency beeen impala and emtala -- emtala and hyde. i'm picking of the provision in the affordable care act that was exusely about abortion. congress said nothing in the aca displaces hyde, and there a other federal restrictions on abortion. the aca displaces emtala's

requirement to stabilize. ithowed that congress recognized stabilizing care is sometimes pregnancy termination. and also showed congressional recognition that these statutes address their own frs one final point on hyde. drawg line based on hyde -- my opponent's point is that even if a woman on the break of death goes to an emergency room and there are federal funds available tat her, hospital has no legation under emtala ide that care. >> what stabilizing treatment entails -- what about a situation -- if you carry the spring he determined it have consequences for your health, but you would need to abort before, 's say15 weeks. so there is not immediacy. she ile when she leaves the hospital. but in idaho, thereno place else that she can go until she

is 15 weeks. what is the federal government's position? >> i think, if i am understanding the hypothetical, she would not have an emergency medical condition in the first plac the definition of having an emergency medical conditi i that without immediate treatment you will reasoblbexpted to have serious dysfunction of your organs orerious impairment of your bodily functions. in the situation where a woman is somewhat high-risk, and maybe she has certain complications where doctors can say there is some danr th terminating the pregnancy, i don't think that creates the kd emergency medical condition that emtala is aimed at. >> this is about the spending clause issue. it does seem odd -- ome of the questions are getting at -- that you would sig agreements between a private entity and the federal gont. the private entity can get out with state law. in another administration, would it be possible that in reliance on the spending power for congress to s any hospital

that takes these fundsnot perform abortions? or any hospital despite state law requiring it, a state law requiring constitution to be available -- is that pos with gender assignment surgery? you could imagine it going back and forth through spendg obligations in ways that would be usu. >> i tnk unger's has broad wer under thepeing clause to attach conditions. th does not mean it is unlimited. pursuant to and illuminate -- enumerated power, it would have to comply with things like relatedness. >> the enumerated power in forbidding gender reassignment surgery orboion -- >> the spending clause itself would be enough, we think. >> going back to where i started, could the feder government regulate the practice

of medicine for the steto the spending lot -- spending laws? i thinthanswer is yes, congress could prohibit joe heck -- gender reassignment surgeries across the nation. it could ban abortion across the nation through the use of its spending clause auory, right? >> congress does have broad authority unde the spending clause, anye that applies to conditions the spending clause requires. i think that would be valid legislation. there isegislation the spdi clause preempts. >> how do we reconcile that with statement 1395 that nothing in this subchapter allows a fera officer to exercise any control over the practice of medicine? >> i think of congress itself is doing that, then it is enforceae by its own terms. >> you don't think it informs our view and understanding of the state in any way? >> i think if there is a direct

conflict, lookinat the later enacted statutes itou control -- this crttself has rejected the idea thathe would be that kind confluence. i'm thinking of the cms vaccine ca wch relied on the exact sa pvision of the medicare act. the report said that cannot bear weight or it would call into question all of the conditions of participation in medicare. >> do you agree that our clear statement law with respect to spending because education -- spending clause and federalism are in place? >> i think congress has respected what providers are pposed to do. >> do you think those presumptions apply? forget about whether you can satisfy them. >> under spending clause legislation, i think that does apply. >> let me ask you to respond to a couple of things th

yopportunity to rebut.d and give hegested or said that you have not identified a circumstance in whichomething that emtala requires, idaho would not allow. i did not get a chance to ask him, but i took him to sort of mean that t idaho's statute operates basically allows for a dto say, in my view, this health threatening circumstance could elly lead to death, so i'm going to do it. to the extent that doctors are still able to do it, i he is saying there is no preemption. however, is it true there is not in operation a difference between emtaland what idaho has required? >> that is gravely mistaken on three levels. it is not the actual text of the aho law.

it is inconsistent with medical reity and is inconsistent with what is happening on the ground, and this is a reall important point. idaho' law only allows terminatioift is necessary to prevent death, and that is xtually very narrow compared to what eala requires in the cateryf harm. if doctors have to shut their eyes to everything except death -- is she about to lose her fertilit is her uterus going to become incredibly scarred becsef bleeding? is she going to undergo kidney failure? that is critical. the other crica textual distinction -- under idaho l, you have to clued --onude death will necessarily result, which is materially different, and the idaho supreme ur recognized it. respect to the medical rli, there are numerous conditions we arworried about where a doctor' is immediate concern is nodeh. they are thinking about the hatmta guards against.

am going to give you premature rupture of the membrane. we have declarationsha explain this in detail. what the doctors explain -- this is dr. fleischer and dr. cooper -- a woman's sack is ruptured. there is no chance theabis going to survive. but she does notetave active signs of infection. until she deriorates, you cannot say she is close to ath. you are worried she will become infected, develop sepsis, and have dramatic coeqnces. but it is not about death. that is one example eryou cannot do it. finally, the actual practice on the ground. woman today are not getting treatment. they have to go out of the state to salt lake city and nehbing states with there are health exceptions. the doctors are facing a minimum of twoea imprisoned, loss of their license, mineral precipice -- criminal prosecution. until the doctor came conclude that the prosecutor looking over

their shoulder won't second guess it was not medically ssarto prevent death. >> thank you, counsel. justice alito? >> we have now heard -- let's see -- an hour and a half of nt on this case. in one potentially vy important phrase in emtala has hardly been mentioned. maybe it has not been mentioned at a. that is impala's reference to the woman's unbornld. isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? have you ever seen an abortion unborn child?uses the phrase >> it is not strange if you look at wt ngress was doing in 1989. there we cases where women were experiencing conditions where their own health was not in danger but the fetus was in wave distress and some people were not treating them.

>> have you seen abortion statutes that use the phrase unborn child? doesn'at tell us something? x it tells uth congress wanted to expand the protections of pregnant women so they could get the same duty to stabilize when they have a conditionha is threatening the health of the unborn child. what it does not suggest is that congress simultaneously displace the independent pre-existing herself is facing grave life and health consequences. >> let us walk through this issue regarding the stus and potential interest of an unborn child. if a woman goes to a hospital wi an emergency medical condition -- that is the phrase. the hospital wants to stabilize the condition or transfer the woman to anotherity. we have this phrase emergency medical condition in that provision. anth under e1, the term is

fined to include a condition that places the health of a woman's unborn child in serious jeopardy. so in that situation, e hospital must stabili t threat to the unborn child. thpln meaning is that the hospital must tryo eliminate any immediate threat to the child. performing an abortion is tithetical to that duty. you go so far as to state -- to say the statutes ear in your favor. i don't know how you can say that in lightf e provisions i just read to you. >> the statute did nothing to displace the woman herself a an individual with an emergency medical condition when her health was in danger. that stabilization equally runs to her. the hospital has to give her necessary stabilizing treatme. sometimes there is no possible way to stabilize the unborn child because the fetus is suiciently beforeiality

and it is inevitable that the pregnancy is going to be loss. >> doesn'wh i've read to you show the statute imposes o hospital a duty to the woman, and also a duty to the child? it does not tell the hospital how it is to adjudice conflicts between tho interests. i have listened to your argument today. it has been dedicated to the proposition th idaho law is a bad law, and that may well be the ce. but what you are asking us to do is to construe a statute that was enacted during the reagan administration and signed by president reagan toean that there is an obligation under certain circumstances to perform an abortion even if it is a violation of state law. >> if congress had wanted to displace protections for pregnant women who are in danger

of losing their own laws or health, they could defe e statutes of the fetus is an individual with an emergency medical condition. instead, congress forhe protection to expand protection r e pregnant woman. duty still runs to her. in a situation where her own life and health is in danger, emtala is clear. the hospital has to offer her stabilizing care. she does not have to accept it. esare tragic circumstances. us women will do whatever they can to save that pregnancy. at the statute gives her that choice. >> the only way you get out of a statutory interpretation is by focusing on the term individual. you say in the dictionary, individual is defined to exclude and unhild or fetus. that is the only way youanry to get out of what i have jt marked. isn't it true that under that dictionary act, definitions

only apply if they are not inconsistent with the time -- the statutory text? you have a text that -- certainly would not dispute the fact that the hospital has a duty tthunborn child where the woman wants t the pregnancy go to term. it isndputably protecting the interest of the unborn child. it is inconsistent with the decks -- the definition ith dictionary act. >> not at all. th runs to the individual with the emergency medical conti. the statute makes clear that that is the pregnanwon. congress wanted to be able to protect her in situations where she is suffengome kind of emergency and the fetus might die. common things like a prolapse of e bilical cord into the cerv wre the fetus is in distress but the woman i not affected -- they would not have anbligation to treat her. to suggest that in doing so congress suggested the woman is not an individual, that she does think this is an erroneous-- i readg.

>> no o is suggesting a woman is not a individual and she does not deserve stabilization. nobody is. >> the state of idaho could declare that she canno receive treatment even if she is about to die. that is the theory of the case in the statute, and itong. >> justice sotomayor? >> this lack of conflict which your opposing colleague says does not exist -- you mentioned a situation wheritoes. why don't use the saintly -- where they aithere is daylight, tell us exactly how you define where the daylight exists >> the daylight as i see i existsn two dimensions. they think that the doctor can only provide care when the woman facing death. we say you can take into account seizure and lifelong of a

neurologic iacts. >> they said the recent decision of the ogocourt says you do not need death to be evident or immediate i think is the word they use if i am not wrong. >> what the idaho supreme court said is there iso particular chance requirement. but the cou cld not do is turn away from the langue exclusively be death and also the inherent conceptf necessity. it is uet isown -- a subjecve standard. but the supreme crtaid prosecutors are free to have other medical experts questn that dr. by saying maybe she did not reallyeeit to prevent death, because herachad ruptured but she was not yet infected. that is exactly the situation that leads to womenei dumped on neighboring states by idaho,

and criminalizing the essential care they need. >> if you could just talk a little bit about that, because as i understand it -- i read recently that the hoit that had the greatest emergency room services in idaho has in a few mont -- that this has been in ace -- had to airlift six pregnant women to neighboring states, whereas in the prior year, they did one the entire year. if mr. turner is right about at the state is trying to imply to hospitals about when they will be prosecuted, why is this happening? >> i think tseoctors can look at the text of the statute se. eyan look at the idaho supreme court decision which made very clear that this does not take into account prior idaho laws that tracked emtala -- their medical license, their ability to practice medicine, and freedom if they have to go

to jail for a nim of two years -- they simply canno provide the care, ev consistent with their subjective medical judgment, because aa matter of medical reality, it is not yet putting a woman at the brink of death. they know that the standard of care is to provide her with termination because she is going to get worse if theyai the other point -- i think this goes back the dual stabilization idea. tragically, inanof these cases, pregnancy is lost. there is not any way to save that fetus. at 15 weeks, there i no medical way to sustain the pregnancy of the fetus. in that situation, what idaho is inis waiting for women to deteriore d suffer lifelong health consequences with no possible hope for the fetus. it' tgedy on tragedy. >> it transfers the appropriate standard of care in idaho. it cannot be the right standard of care to force somebody onto a

helicopter. >> it is inconsistent with what congress is trying to do in the statute. on of the primary motivator here was to prevent patient dumping. the idea was we dootant people to have to go somewhere else to get theirar you go to the first emergency room in yourtate, and they haveo abilize you. this allows states to take any treatment they do not want their hospitals to provide and dump those patients out of state. you can imagine if every state tried to take this approa. >> on e spending clause qutis -- if you accepted mef these theories, but with the consequences of something like that be that we would have to worry about? >> i think it would call into question any number of statutes that provide funds to private parties. the e a bunch of them. there is the medicare system, the federal spending progr. that is provided under title vi, under tie . a lot of federal statutes out there give private parties and

insist oconditions of compliance with federal funding restrictions. this court would suddenly say at cannot preempt contrary state law. i think it would seriously interfere with the ability of the federal government to get benefit in the spending program. x you mentioned fore that this question has never been part of this case. >> that's right. they did not make the arguments inheower court. they briefly referred to the spending clause. do not understand. i think the lower courts could not address it. they referred to it in a footnote of their brief. >> thank you. >> justice kavanaugh? >> you have touched on what is happening on the ground, and that important consideration and answer to the question of what is happening. aho is representing that -- there are nine condithat have been identified by the

vernment where emtuld require thatn ortion be available, and abortion is available under idaho law. are there other condio you have ruled out? mental health -- are there other conditions you would identify. are you just saying that is not really happening on the ground? i think that is part of your answer. i jt want to get a fuller answ othat. >> it certainly is not happening t ground. the problem with my ie's theory is that you, square idaho law with the text of the statute. i just wand say they are not the ulma authority of what the idaho law means. at is the idaho supreme court. addressed the issue in a planned parenthood case. i think it is significant that in planned parenthood, the idaho supreme court expressly contrasted this statute with other statutes that contain health preserving measures and recognized this was a departure from that.

the legislature wanted to focus exclusively and more narrow -- more narrowly on a necesryo prevent that exception. that essentially means the supreourt of idaho has already touched on this issue. ino wonder that doctors who are facing theseinds of complications, where in their dical judgment it is not necessary to prevent death yet, the woman is going to suffer serious health consequences -- their hands are tied. they cannot prove re under the idaho law. >> on page eight and nine of the brief -- if that were idaho law, would there beroems? >> we have an authoritative idaho supreme crt decision that says idaho law allows f teination and the circumstances where emtala would require it. then the conflict goes awa i cannot imagine the court would say th >> that is not quite what eight point on that.but i take your separate questn,ifferent category. think one of the themes on the others is that this law, passed in 16,s a very important law

addressing a very important problem -- ably the problem where hospitals were turning away the poor and uninsured patients coming in for emergency care. this congress saiweannot allow hospitals to turn away patients who are uninsured even in emergencies. the law was not designed contextually to deal with specific -- with aboioor other specific kinds of care. they want to make a ttu argument. they make a broader textual argument about the whole idea of what is going on in 1986. ke sure you respond to that. >> i appreciate having the chance to address that. at the outset, i don't think they can square that theory with thtext of the statute, which says in no uncertain rm here is a fundamental guarantee. if you hav an emergency condition anyogo to an e.r., you have to stabilize i

reasonable medical probability to make sure you do not deteriorate. congress did not provide a reticulated list of all hospital emergency medical conditions and all possible treatments, but was very clear that congress set a baseline national standard of care to ensure that no matter where you live in this country, you can't be declined service and the urgent needs of your medical condionddressed. that is the singular way to treatnaphylaxis. that would violate t stute and we would end up making the very same argument. if you have ample access. i do not see any way to try to draw les around excluding egncy cplications -- the tragic circumstances are the only wayo address the woman's condition and prevent material deterioration for the pregnancy to end. >> justice barrett?

>> i underthe primary difference between emtala and the ohio statute is health. idcuses on risk of life, but the fedevernment says - emtala says health. am i right? it is health and life? but that is the princal difference. think it is also the differenc between necessary to prevent death versus the health concerns would be reasonably expected to occur. i think that is a standard that gives more space for doctors to take action. >> is the federal government aware of any state other than aho that has a lawhat does not take health into account? >> there are six other states at have severe abortion restrictions witho aealth exception. those are th primary category of statewere concerned about here. i shldake clear there are pending judicial challenges in not in effect right now.aws are >> besides texas, has the federal government brought suits

similar to the one brought in idaho and texas in any of these other states? >> texas sued us. but we have not brought litigation in other states. i thinkhicase has been on a course andda's law is severe because the state conceded that. they have modified the law, but it was one of the pressing concerns because of that. >> petitionees pretty heavily on statement rule princi i wonder if you might comment on my thought that those principles actually cut against them in this case. as you said, congress set a baseline national standard of it has in no uncertain terms that the hospital must provide stabilizing care to ople experiencing emergency medical conditions. particular conditions,aid -- no

particular treatments talked about, carve etc.. if clear sta is required, wouldn't it be requirement of exempting abortion? justice alito has talked about somef the references to unborn light -- like an exemption that i would think ourle statement would require in a circumstanceich the baseline is this clear national standard of care. i agree. i think congress curly was requiring stabilization and it is an unqualified mandate. it was not exempting particular physicians are types of treatmen his court has said there are no doughnut holes. when you have a provision like that, e ct that you don't have a specific enumeration of one of i alications does not mean you should read in an implicit exception. i think looking for something clear we would need to see a

clear statement that core intended for you not to have to provide an abortion pursuant to the mandate of providing stabilizing care. >> i think the court has recogniz that every relevant actor h uerstood the legislation that way from the begiin this h been the agency's position all along. were not adopting a new position. that is hhs guidance. providers have understood it, even hospitals that do not provide elective abortions. they have always provided life-sustaining and health sustaining pregnancy termination coistent with emtala. congssecognized in the affordable care act. i do not think it is reasonable that cgress misunderstood what it is doing in the statute. >> thank you, counsel. rebuttal, mr. turner? >> thank you, your owners. emtala takes state law practice of standards as it finds them.

asce gorsuch noted, that is what 1395 said. in the vaccine mandate case that was referenced, that is what the solicitor general's office told this court. they said 1395 does not allow federal officials to dictate rticular treatments for particular cases. that is exactl they are trying to do here with emtala. with subdivision at, that codifies -- that is the point. we do presume that state law continues to operate. you do not presume the opposite. it is supported by cms operations manual, wh hhs's was at a stone of emtala -- rosettatone of emtala enforcement. it tells agents on the ground that you consider whats available by referencing what is

wiinhe scope of that dr.'s license. that is exactly ate are saying. it is also specifica directed according to cmr 41, which requires hos to ensure that their medical staff cply with state law. this is a federal regulation that directs hospitals to require their staff to comply with state law. it is also confirmed by the 115,000 enforcement mechanisms that like any theory would support the administration's reading. she sa this has always been understood to be the case. ould think we would find in those 15,000 instances a single example where state law was overridden by emtala, and there not one. finally, the text. the text codifies an tele-'s stabilization requirement with the staff that is available. no nurses cannot m open heart surgery d nitors

caotraw blood. it is not a plane mandate does void of referenceo state law. we know the word available even in common usage incorporates state law. for example, you heard just the other day when considering whether a bed is available for physical sense and a legalth a sense. whethe cigarettes or alcohol e ailable to peopleere is a physical question and a lel question. hospitals.e available in they are on the shelf. they are physically there. there is a legal question that comes into play there is the same with abortions. in rpoe to the chief justi'sueion on conscience, ms. prelogar said hospitals and individuals e exempted. we are relieveear that. but it highlights the other inconsistency of e administration's reading. emtala's stabilization requirement is general enough no to override extra-textual

protections like conscience protections, then it cannot be so specific and include a reirent that is indirt conflict with state la those two don't jibe. this court does not lightly find direct conflict. congress must speak clearly. it has not done so here. the administration's position is untethered from any limiting principle. i think hrd that. there is no way to limit this to abortion. and eris no way to limit it to. our 22 states with abortion ws on the books. this is not going to end with the six states that general they all defined health and emergency exceptions narrower than e does isuestion is going to come up in state after state after state. it i not limited to physical health. i know general prelogar ss

there is no circumstance i which a mental health condition would acquire stabilatn with an abortion. she is fighting with american psychiatric association , the standard. that is not nstent. and it is not matted to emtala. justice thomas, alito, gorsuch -- all pointed out the major spending clause implications at play. i disagree that we did not brief this. we recognize that this is hugely concerning. t the federal government can pay actors to violate state l -- state criminal laws. the implications areas it leaves the federal government unbound by enumerated powers. i think general prelogar admitted that. the court does not have to answer that question. >> thank you, counsel. the case is submitted. >> the honorable court is now

adjourned until tomorrow at 10:00. [captions copyright national cable satellite corp. 2024] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >>mooyle -- moyle versus the united states -- we look live outside the court. we will have more live coverage and discussion on the role abortion issues are playing in the 2024 for the initial election. we will hear from former advisor to president trump kellyanne conway. tomorrow, c-span will be back at the court for live argument in trump versus united states, the king at whether the former president is immune from criminal prosecution for his alleged role in trying to overturn the results of the 2020 election. also this evening, a discussion with former congresswoman liz cheney and historian jon meacham on principles and politics, broadcast live from the national cathedral at 7:00 p.m. eastern.

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protesters also, we will take you to a different shot here as some of the people are taking to the odium. -- podium. >> abortion is health care.

>> and there are people who are arguing about passing laws to let us died. we wish we were being hyperbolic. i wish i could say that we should be surprised, but right now, the state of idaho is in the courtroom arguing for the right to deny is health care. this is the moment that we are in. florida and arizona, banning nearly all access to abortion, access to contraception and ivf. now, you have anti--- >> up-to-date on the latest in publishing with book tv's podcast "about books"