The importance of references to the “unborn child” in the federal emergency medical care statute at the center of the Idaho abortion ban case was the subject of heated debate between liberal and far-right wings, according to the version of the decision obtained by Bloomberg Wednesday.
This could be an important issue if the case returns to the Supreme Court.
What conservatives say: A dissent written by Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, embraced an argument put forward by Idaho and its supporters in their efforts to defend the state’s strict abortion ban. Alito described the Emergency Medical Treatment Labor Act (EMTALA), the main federal law in the dispute, as having an “express protection of the unborn child. “
“Far from requiring hospitals to perform abortions, the text of EMTALA unequivocally requires that Medicare-funded hospitals protect the health of both the pregnant woman and her ‘unborn child,’” Alito wrote.
He later added that “EMTALA forces Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”
What liberals say: Justice Elena Kagan, in parts of her concurrence joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, sought to refute Alito’s claims. She said three of the statute’s four references to an “unborn child” had to do with how hospitals handle transfers of women in labor and were therefore not related to the types of emergency complications in the pregnancy in question in this case.
Advocates on both sides of the abortion debate were closely watching how the court treated the “unborn child” language in the case. Anti-abortion activists argued that this showed that Congress, when it added the provisions that made the reference, saw an interest in protecting the life of the unborn child. Abortion rights advocates responded that this was not Congress’s intention and feared that the conservative Supreme Court would make fetal personhood a federal statute for the first time.
For now, it is unclear whether either interpretation is accepted by the majority of the high court.
