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This week, the U.S. Supreme Court will hear arguments in a dispute over whether states can decline to abide by the Emergency Medical Treatment and Labor Act. EMTALA is a federal law requiring stabilizing care for all ER patients, including abortion care, even if it conflicts with a state’s own stricter abortion rules. Moyle v. United States consolidates two cases—Idaho v. United States and Moyle v. United States.

The issue is reasonably simple: EMTALA has been broadly understood to cover—and in 2022 the Biden administration clarified that it did indeed cover—the need to perform stabilizing abortion care on patients for whom it is the medically indicated treatment to resolve a medical emergency. The state of Idaho’s anti-abortion law allows for an abortion when “necessary to prevent the death of the pregnant woman,” but not when it might MERELY cause disability or seriously bodily harm. The Biden administration sued Idaho, alleging that the state’s abortion ban conflicts with EMTALA and that federal law trumps Idaho law. That’s Supremacy Clause 101: When a federal law conflicts with a state law, the federal law preempts the state law. (It’s also called preemption.) But Idaho contends that THIS state law should absolutely trump the federal law. When a federal district court ruled in 2022 that Idaho’s abortion ban cannot trump EMTALA if a pregnant patient has a medical emergency that requires an abortion, the U.S. Supreme Court stepped in and put that order on hold.

Earlier this month on the Amicus podcast, Dahlia Lithwick spoke to emergency medicine physician Dara Kass about the health care that happens in the gap between the federal requirement for stabilizing care and the local laws in Idaho and other states that have enacted near-total abortion bans post-Dobbs. Their conversation has been edited and condensed for clarity. You can listen to the whole episode here.

Dahlia Lithwick: So, EMTALA requires that if an individual comes to a hospital and the hospital determines that they have an emergency medical condition, they must “stabilize the condition,” and then it defines the term “emergency medical condition” to include things that put a patient’s health in serious jeopardy, threatens serious harm to a patient’s bodily functions, any bodily organ. Mental health is also included. Can you just walk us through what range of things go into that description of what an emergency is?

Dara Kass: It’s actually much more simple in practice than it is on that list, and that’s why the lists tend not to be helpful to doctors. So somebody comes to my emergency department and I immediately assess them for an emergency. That will be things like checking their vital signs, making sure that if they’re bleeding, they’re not bleeding in a way that would threaten a need for transfusion immediately or that it wouldn’t increase the rate of bleeding. It may be things like, if they are at risk for self-harm........

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