Will women again be failed by this Court? Or will the justices finally be able to look at the devastation they have caused to women and families and not blink?
Women’s lives and futures, once again, are in the hands of the U.S. Supreme Court. And, we’ve come to the point in post-Dobbs America where the legal system, and the nation’s highest Court, are now entertaining questions about how long is too long for a woman to have to wait to receive emergency care when her organs—including her reproductive organs—are in danger.
In the midst of the nation’s maternal mortality crisis, the justices heard arguments on Wednesday in Moyle v. United States, a case where Idaho and other states that have banned abortion are attempting to deprive pregnant people of the federal protection entitling all people to emergency care. The Emergency Medical Treatment and Labor Act (EMTALA) protects people experiencing medical emergencies from being turned away from the emergency room. This law applies to pregnant people just as it applies to non-pregnant people.
Yet, the same extreme lawyers and lawmakers who invited the Court to overturn Roe v. Wade are now seeking to leave pregnant women experiencing tragic complications abandoned in emergency rooms. And, the U.S. Supreme Court has—to date—allowed this.
Enacted in the 1980s to address “patient dumping,” EMTALA requires that hospitals that receive federal funds (which is the vast majority) take steps to provide life-saving care to a patient in an emergency condition. After EMTALA, it was no longer lawful for a hospital to leave a patient suffering on the hospital steps, failing to give them the care they required.
In a brief to the Court, emergency room physicians and health professionals emphasized that there are certain emergency life- and health-threatening complications—such as infection due to early pregnancy loss, excessive bleeding, and breaking water too early in the pregnancy—that may require an emergency abortion in order to preserve a patient’s health, life and fertility.
This care is now criminalized in places like Idaho—where the Supreme Court has allowed a strict abortion ban that conflicts with EMTALA to go into effect—and my home state of Texas, leaving patients and physicians in an untenable circumstance where they cannot practice evidence-based medicine without fear of criminal prosecution.
In a democracy, those who are personally opposed to a course of medical treatment should not be able to use their view to prevent those in need of care from obtaining it.
As Justice Ketanji Brown Jackson pointed out while questioning Idaho’s lawyers, the legal issue is straightforward under the Court’s prior cases. Under the U.S. Constitution, when a state law conflicts with a federal one, it is the federal law that must be followed. EMTALA is a federal law entitling all people to emergency care. States cannot override that. Under our Constitution and federal laws, the ability to access emergency care should not depend on the state you live in—or if you are pregnant or not.
The medical question is not difficult either. Every major national medical organization as well as the American Hospital Association has weighed in at the Court warning of the harms of undermining EMTALA’s protections. The largest private employer in Idaho has also shared its support of EMTALA to the Court. That employer also happens to be St. Luke’s: a hospital system that delivered over one-third of Idaho’s live births in 2022. Doctors should not be forced to choose between rendering emergency care and going to jail.
Nor is the moral question a difficult one. In her questioning, Justice Sonia Sotomayor recounted harrowing accounts that have been filed with the Court of women facing life-threatening emergencies and non-viable pregnancies being denied necessary care, at times having to forgo their reproductive organs. Instead, they are transferred to other states where doctors can lawfully perform the life-saving care needed—which denies immediate care and adds additional risk to the patient’s health because of the delay. Care delayed is care denied.
Several businesses, from Levi Strauss to Lyft, filed a brief with the Court urging the rejection of this extreme attack on women’s health, calling restrictions on reproductive care “bad for business.”
In a democracy, those who are personally opposed to a course of medical treatment should not be able to use their view to prevent those in need of care from obtaining it.
Will women, once again, be dumped by this Court? Or, will this time, the justices be able to look at the devastation they have caused to women and families and not blink?
Whatever the Court rules, our democracy has failed when the lives of women are threatened at the whims of an extremist legal effort that appears to be undeterred in imposing its views on millions.
Indeed, there is a relationship between the health of a democracy and its treatment of women and girls—and it is not hyperbole to note that our democracy is presently on life support. When democracies fall, it is because people do not believe it is possible before it is too late.
We must see clearly what is happening in the United States in 2024. It is past time that those seeking to undermine the rights of women be held to account—and for the Court to protect the rights of people, not undermine them.
Up next:
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.
