Elena Kagan Asks Lawyer Point Blank If He Disputes ‘Medical Standard Of Care’ In Idaho Abortion Case

4/27/2024

Justice Elena Kagan questioned Joshua Turner, attorney for Idaho's Office of the Attorney General, during Wednesday’s oral arguments in Moyle v. United States & Idaho v. United States.

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Transcript

00:00Justice Kagan. Mr. Turner, practicing medicine is hard, but there are standards of care,

00:06aren't there? Yes, there are. And one of those standards of care with respect to abortion

00:11is that in certain tragic circumstances, as you yourself, as your own state's law acknowledges,

00:19where a woman's life is in peril and abortion is the appropriate standard of care. Isn't

00:24that right? That's right. And EMTALA goes further. It says that the appropriate standard

00:31of care can't only be about protecting a woman's life. It also has to be about protecting a

00:37woman's health. That's what EMTALA says, doesn't it? No, it doesn't. It defines the emergency

00:42medical condition with a broader set of triggering conditions. But the key question here is what

00:47is the stabilization requirement? And that is qualified by the availability term. The

00:53stabilization requirement is written in terms of making sure that a transfer would not result

01:03in a material deterioration as to the emergency condition. Nothing about has to be a death

01:09store, right? I think that's right. Yeah. And there is a standard of care with respect

01:15to that on abortions, too, right? If a woman is going to lose her reproductive organs unless

01:21she has an abortion, which happens in certain tragic circumstances, a doctor is supposed

01:26to provide an abortion. Isn't that right? EMTALA doesn't contain any standard of care.

01:29I don't know where the administration is. Do you dispute that there's a medical standard

01:33of care that when a woman is about to lose her reproductive organs unless she has an

01:39abortion, that the doctors would not say that an abortion is the appropriate standard of

01:44care in that situation? Your Honor, what I dispute is that there is a national uniform

01:50standard of care that requires a top-down approach in all states. Idaho has set its

01:54own standard of care, and it has drawn the line on a difficult question. And it's inconceivable

01:59to me to think that Congress attempted to answer this very fraught, complicated question

02:05in four pages of the U.S. Code. Congress said, as to any condition in the world, if an emergency

02:11patient comes in, you're supposed to provide the emergency care that will ensure that that

02:18patient does not see a material deterioration in their health. That's what Congress said.

02:23And the abortion exceptionalism here is on the part of the state, saying we're going

02:28to accept that with respect to every other condition, but not with respect to abortion.

02:33Abortion isn't exceptional. Where we will not comply with the standard of care that

02:37doctors have accepted. Your Honor, abortion isn't exceptional. There are numerous cases

02:43where states intervene and say, the standard of care in this circumstance for this condition

02:47is X, not Y. Opioids, for example. In New Jersey, a doctor cannot stabilize chronic

02:52pain with more than a five-day supply of opioids. In Pennsylvania, it can be seven. In other

02:57states, there's no limit. Their reading of EMTALA requires that those limitations get

03:02wiped out, and you impose a national standard. There are numerous other instances where states

03:07are coming in and saying, in our state, the practice of medicine must conform to this

03:12standard. And Idaho has done that with abortion, it's done it with opioids, it's done it with

03:15marijuana use. There are countless examples, Your Honor.

03:18And your theory, although the Supreme Court has narrowed the reach of your statute, your

03:25theory would apply even if it hadn't. I mean, it would apply to ectopic pregnancies. It

03:31would apply even if there were not a death exception. I mean, all of your theory would

03:37apply no matter what, really, Idaho did, wouldn't it?

03:42Yeah, I think the answer is EMTALA doesn't speak to that. But there are other background

03:47principles and limitations, like rational basis review, Justice Rehnquist, the Chief

03:51Justice would recognize that.

03:52But your theory of EMTALA is that EMTALA preempts none of it. That a state tomorrow could say

03:58even if death is around the corner. A state tomorrow could say even if there's an ectopic

04:03pregnancy. That still, that's a choice of the state, and EMTALA has nothing to say about

04:10it.

04:11But EMTALA is a humble one with respect to the federalism role of states. That's the

04:15primary care providers for their citizens, not the federal government.

04:18It may be too humble for women's health, you know? Okay, thank you.

Elena Kagan Asks Lawyer Point Blank If He Disputes ‘Medical Standard Of Care’ In Idaho Abortion Case

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