Three Supreme Court justices want to ban emergency abortions nationwide

Three of the conservative justices on the Supreme Court endorsed a radical opinion that EMTALA prohibits a hospital from performing an emergency abortion to save the life of the pregnant person.

Are you pregnant? Planning to become pregnant? At least three Supreme Court justices are eager to let you die— eager to bar you from receiving the essential emergency medical treatment that federal law guarantees to all Americans. And if (or when) they get their way, you can forget about having to be airlifted out of your state in the middle of a medical emergency; you can even forget about being airlifted out of this country. You'll be trapped in a hospital that can neither help you nor transfer you. 

This is not hyperbole.

On Thursday, June 27, 2024, the Supreme Court kicked the combined cases Moyle v. United States and Idaho v. United States back down to the lower courts. The Conservative Supermajority refused to uphold federal protections for the lives and health of pregnant patients experiencing obstetric emergencies that, for nearly forty years, have been guaranteed under the Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986. 

The case itself still exists. It “will now be heard by the US Court of Appeals for the Ninth Circuit, eventually the Ninth Circuit will rule, and that ruling will be appealed right back to this Supreme Court.”¹ In other words, the Supreme Court just kicked the can down the road, leaving pregnant patients and emergency room physicians in limbo.

“The decision in Moyle was transparently a compromise between the court’s three liberals, who wanted to preserve women’s lives, and the three more pragmatic conservatives – John Roberts, Brett Kavanaugh and Amy Coney Barrett – who wanted to preserve Donald Trump’s electoral chances. These conservatives know that a ruling saying that states can allow women to bleed out, suffer septic infections, have seizures from eclampsia, lose the function of their uterus and ultimately die – out of deference to preserving what by then are already doomed, futile pregnancies – would hurt Republican candidates in this November’s elections. That doesn’t mean they don’t want to issue such a murderous ruling; it means that they want to do so at a more politically convenient moment.”²

EMTALA's protections are essentially the walking dead. 

As the justices’ concurrences and dissents attached to the June 27th ruling make clear, all six justices that make up the Conservative Supermajority on the Supreme Court are prepared to nullify EMTALA’s protections for pregnant patients’ lives and health. States will be free to completely ban abortions— even those necessary to save the pregnant person’s life. 

But at least three Republican Supreme Court justices want to go even further: They want to force hospitals to let you die.

Three of the conservative justices on the Supreme Court endorsed a radical opinion that EMTALA prohibits a hospital from performing an emergency abortion to save the life of the pregnant person.

Justice Samuel Alito authored a dissent, which was joined by colleagues Clarence Thomas and Neil Gorsuch, that is laden with fictitious content and argues, falsely, “that EMTALA never protected pregnant patients in need of abortion in the first place.”³ “To make that case, Alito drafted a wholesale rewrite of legislative and legal history.”⁴ Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch adopt the position that “EMTALA requires the hospital at every stage to protect an ‘unborn child’ from harm,” adding that “[i]t goes without saying that aborting an ‘unborn child’ does not protect it from” harm.

In so doing, Alito, Thomas, and Gorsuch contrive a wholly novel position that “the mere mention of unborn child in EMTALA [is] evidence that Congress intended to prioritize the needs of the unborn patient over the expense of the health and even life of the pregnant patient.”⁵ By the conservative justices' reading, not only does EMTALA not require hospitals to offer a pregnant person with an emergency medical condition stabilizing care if it harms their fetus, but EMTALA actually prohibits hospitals from providing pregnant patients with stabilizing care if it harms their fetus.

As Justice Kagan noted, the three justices’ primary, and fictitious, claim “is that although EMTALA generally obligates hospitals to provide emergency medical  care, it never demands that they offer an abortion—no matter how much that procedure is needed to prevent grave physical harm, or even death,” a radical argument that “has no basis in the [federal] statute.”

As if this were not already abominable enough, the dissent of the three Republican justices takes aim at hospitals’ ability to transfer pregnant patients to other hospitals. Claiming that the definition of “individual” under EMTALA also applies to fetuses, Alito, Thomas, and Gorsuch contend that hospitals cannot transfer a pregnant patient to another hospital to receive an abortion to save the patient's life, because doing so will harm the fetus. Women, the dissent argues, cannot be treated as individuals, because, “when a pregnant woman is transferred, her ‘unborn child’ obviously goes with her.” Therefore, “regardless of whether a hospital chooses to treat or transfer a pregnant woman, it must… protect her ‘unborn child’ from harm.”

Therein, the three conservative justices contort EMTALA’s protections for the life and health of pregnant patients into a bizarre contention that EMTALA establishes Fetal Personhood, effectively erasing the personhood of the pregnant person— trapping her in a hospital, in a state, in a country, only to die.

These Republican justices’ inverted view of EMTALA does not merely establish Fetal Personhood; it also establishes Fetal Coverture.

Coverture was common law “marriage doctrine that originated in England during the Middle Ages and was imported to the colonies. Under coverture, free women of status and property had their legal existence subsumed into that of their husband during their marriage.”⁶ Sir William Blackstone, “whose Commentaries on the Laws of England enshrined the principle of coverture that required married women’s identities and legal rights to be subsumed under the broader scope of their husbands’ identities,”⁷ explained Coverture as follows:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called . . . a feme-covert.⁸

“Practically speaking, this meant that during the existence of the marriage, the woman could not make contracts, dispose of property, or earn income without her husband’s consent. There is a direct parallel in the legal status of pregnant women, who now face a range of disabilities, from not being able to direct the course of their lives to being ineligible to receive treatment for cancer. But instead of their legal existence being ‘covered’ by their husband, it is now covered by the unborn child they carry, in whatever stage of development.”⁹ Fetal Coverture can thus be described as:

By [pregnancy], the [unborn] and [host woman] are one person in law; that is, the very being or legal existence of the woman is suspended during the [pregnancy], or at least is incorporated and consolidated into that of the [unborn]; under whose [cover] she performs everything; and is therefore called . . . a [feme-pregnant].¹⁰

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch “argue that EMTALA does not limit enforcement of state abortion bans, no matter how narrow their life exception, because they read unborn child in the federal law as treating the fetus as a rights-holding person. This reading of (or into) the statute is remarkable. In 1989, ‘after reports that some hospitals were refusing to care for uninsured women in labor … Congress expanded EMTALA to specify how it included people who were pregnant and having contractions.’ Alito, Thomas, and Gorsuch never mention Congress’ concern with hospitals that were dumping uninsured patients who arrived at the emergency room in the midst of delivery. Instead, the court’s hard-line conservatives reason that the mere mention of the term unborn child in EMTALA creates ‘express protection of the unborn child.’ In Alito’s reading, the statute demonstrates a kind of fetal personhood that renders invisible the personhood of the pregnant patient—and leaves a woman to fend for herself in the face of a medical emergency, while obliging doctors “to protect her ‘unborn child’ from harm.”¹¹

“The anti-abortion movement has long attacked the idea that abortion is health care. Many are skeptical that abortion exceptions ever address bona fide medical needs. Their rallying cry is that abortion is never necessary to save a woman’s life,”¹² and they have long defended the barbaric abortion bans in other countries which outlaw saving the lives of pregnant women experiencing obstetric emergencies. No matter how many pregnant women die, no matter how much international news coverage each of the preventable and unnecessary deaths receives, the anti-abortion movement is always there to deflect blame for the senseless tragedies and to defend these nightmarish, draconian laws.

Today, six (out of nine) Supreme Court justices, having fully adopted the anti-abortion movement's goals as their own personal cause célèbre, now view health and life exceptions with extreme suspicion. “This is a dramatic break with the nation’s history and traditions.”¹³ As law historians Reva Siegel and Mary Ziegler show in a forthcoming paper, Abortion’s New Criminalization, “abortion bans in the era before Roe protected doctors’ judgment in responding to the emergency health needs of pregnant patients, as the law after Dobbs fails to do.”¹⁴

Alito's, Thomas's, and Gorsuch's reading of EMTALA not only takes away a pregnant person's right to be offered a life-saving abortion in a medical emergency, but the justices’ reading of EMTALA also makes performing a life-saving abortion, in any state in the country, a violation of EMTALA, and prevents patients from being transferred in order to receive life-saving healthcare. It's unconscionable.

1. Mystal, E. (2024, June 28). The Supreme Court’s latest abortion ruling is a cynical ploy. The Nation. https://www.thenation.com/article/society/supreme-courts-abortion-emtala-idaho/

2. Donegan, M. (2024, June 28). The abortion ruling hides conservative justices’ partisan agenda | Moira Donegan. The Guardian. https://www.theguardian.com/commentisfree/article/2024/jun/28/supreme-court-abortion-ruling-conservative-justices

3. Smith, J. (2024, June 28). Alito’s dissent in emergency abortion case provides “Building blocks” for more extreme bans. The Intercept. https://theintercept.com/2024/06/28/emtala-supreme-court-decision-alito/

4. Smith, J. (2024, June 28). Alito’s dissent in emergency abortion case provides “Building blocks” for more extreme bans. The Intercept. https://theintercept.com/2024/06/28/emtala-supreme-court-decision-alito/

5. Siegel, R., & Ziegler, M. (2024, July 2). Amy Coney Barrett signaled something very scary about where abortion bans will go next. Slate Magazine. https://slate.com/news-and-politics/2024/07/amy-coney-barrett-next-abortion-bans.html

6. Morrison*, C. M. (2023, March 29). State abortion bans: Pregnancy as a new form of coverture - virginia law review. Virginia Law Review -. https://virginialawreview.org/articles/state-abortion-bans-pregnancy-as-a-new-form-of-coverture/

7. Murray, M. (2023, June 2). Children of men: The roberts court’s Jurisprudence of Masculinity: Published in Houston Law Review. Houston Law Review. https://houstonlawreview.org/article/77663-children-of-men-the-roberts-court-s-jurisprudence-of-masculinity

8. Morrison*, C. M. (2023, March 29). State abortion bans: Pregnancy as a new form of coverture - virginia law review. Virginia Law Review -. https://virginialawreview.org/articles/state-abortion-bans-pregnancy-as-a-new-form-of-coverture/ 

9. Morrison*, C. M. (2023, March 29). State abortion bans: Pregnancy as a new form of coverture - virginia law review. Virginia Law Review -. https://virginialawreview.org/articles/state-abortion-bans-pregnancy-as-a-new-form-of-coverture/ 

10. Morrison*, C. M. (2023, March 29). State abortion bans: Pregnancy as a new form of coverture - virginia law review. Virginia Law Review -. https://virginialawreview.org/articles/state-abortion-bans-pregnancy-as-a-new-form-of-coverture/ 

11. Siegel, R., & Ziegler, M. (2024, July 2). Amy Coney Barrett signaled something very scary about where abortion bans will go next. Slate Magazine. https://slate.com/news-and-politics/2024/07/amy-coney-barrett-next-abortion-bans.html

12. Siegel, R., & Ziegler, M. (2024, July 2). Amy Coney Barrett signaled something very scary about where abortion bans will go next. Slate Magazine. https://slate.com/news-and-politics/2024/07/amy-coney-barrett-next-abortion-bans.html

13. Siegel, R., & Ziegler, M. (2024, July 2). Amy Coney Barrett signaled something very scary about where abortion bans will go next. Slate Magazine. https://slate.com/news-and-politics/2024/07/amy-coney-barrett-next-abortion-bans.html

14. Siegel, R., & Ziegler, M. (2024, July 2). Amy Coney Barrett signaled something very scary about where abortion bans will go next. Slate Magazine. https://slate.com/news-and-politics/2024/07/amy-coney-barrett-next-abortion-bans.html