Fetal Personhood Fight Underlies Supreme Court Abortion Case

A US Supreme Court case that pits emergency health care against a state abortion ban is being closely watched for its potential to create a foundation for fetal rights.

The justices are being asked if Idaho can prevent abortions in emergency situations under a federal law that requires most hospitals to stabilize patients who arrive with serious and life threatening conditions regardless of their ability to pay for care.

It’s the second case this term to challenge abortion access since the court overturned the constitutional right to the procedure in a 2022 decision that left the issue for each state to debate. Legal scholars say the outcome could be foundational and far reaching.

The case being argued April 24 asks if the Emergency Medical Treatment and Labor Act (EMTALA) supersedes Idaho’s near-total ban on abortion and requires hospitals to offer the procedure in emergency situations.

Idaho argues EMTALA’s text demands equal treatment for the life of the pregnant patient and “the unborn child,” so there’s no conflict with state law.

If the court agrees with that reading, it would be the first time a fetus has been given individual rights under a federal statute, said Elizabeth Sepper, a University of Texas at Austin School of Law professor who teaches religious liberty and health law.

“One reason to be particularly concerned about the language is that it suggests a nationwide obligation,” she said. “It suggests a hospital in Massachusetts actually has a duty to stabilize a fetus that is equal to their obligation to a pregnant person.”

While abortion-rights advocates refer to this as a fight for fetal personhood rights, anti-abortion advocates push the issue using different language. They say they’re protecting the “unborn child,” terminology that Sepper said is already used in EMTALA as a result of their advocacy.

Spending Power

The Biden administration sued Idaho over its abortion ban in 2022 and got a district court order temporarily blocking the law from being enforced in emergency care situations. The decision was tossed out by the US Court of Appeals for the Ninth Circuit and then affirmed by a larger panel of the court’s judges.

Idaho’s attorney general and its legislature now want the Supreme Court to let the law take effect, arguing the government’s reading of EMTALA is a federal power grab. The law can’t be used to displace state abortion laws, the state says.

“This case is not about ‘fetal personhood,’ it’s about whether EMATALA preempts Idaho law, the state’s Attorney General Raúl Labrador said in a statement.

EMTALA requires hospitals that participate in Medicare to provide stabilizing care to any “individual” with an “emergency medical condition.”

Justice Department attorneys said Congress amended the law in 1989 to make clear it applies when a medical condition seriously threatens the health of a woman and her “unborn child” even if her own health isn’t at risk. Nothing stops a hospital from terminating a pregnancy when that’s the stabilizing care required to save the woman’s life or prevent serious harm to her health, they said.

The Justice Department declined to comment on the potential for this case to establish protections for a fetus under a federal law.

Because Idaho raises arguments about the bounds of the government’s spending power, some anti-abortion advocates expect the court to focus on that.

Just because hospitals in Idaho have accepted federal funding, doesn’t waive the sovereign right of the state to enforce its laws, Teresa Collett, director of the University of St. Thomas School of Law Prolife Center, said.

“The personhood question is fair game, but I think the court has taken an agnostic position on it,” she said.

When the court overturned Roe v. Wade in 2022, Justice Samuel Alito said in the majority opinion the court wasn’t basing its decision on any view about if and when prenatal life is entitled to rights.

“According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that ’theory of life,” he wrote.

The justices turned down a case filed a few months later asking them to give unborn children constitutional protections regardless of gestational age under the Fourteenth Amendment.

In the Idaho case, Carolyn McDonnell, litigation counsel for Americans United for Life, thinks the court will focus instead on the hospitals’ conscientious objections to abortion.

“I don’t believe it’s going to go to the personhood question,” she said.

Signal to States

Advocates on the other side think the justices can’t avoid the issue of fetal rights in this case.

Idaho’s entire argument relies on the idea that an unborn child is entitled to the same health-care protections as a pregnant person, said Karen Thompson, legal director at Pregnancy Justice, a nonprofit legal advocacy group that defends the civil and human rights of pregnant people.

“The only way for the court is through and the only way through is to decide whether or not an unborn child is defined in EMTALA as any fetus,” she said. “This is going to have to be dealt with.”

Idaho is pointing to a separate Fifth Circuit decision that blocked the Health and Human Services Department (HHS) from enforcing guidance in Texas that it released on EMTALA after the Supreme Court overturned Roe. The guidance reminded hospitals receiving Medicare reimbursements that they must provide stabilizing care to pregnant patients regardless of state laws prohibiting abortion.

The appeals court said EMTALA doesn’t require physicians to provide abortions when that’s the necessary stabilizing treatment for an emergency medical condition.

“The text speaks for itself: EMTALA requires hospitals to stabilize both the pregnant woman and her unborn child” and the balancing of that stabilization is left to doctors who must comply with state law, the Fifth Circuit said.

When the Supreme Court heard arguments last month on the Food and Drug Administration’s (FDA) 2016 and 2021 actions to make the abortion drug mifepristone easier to get, Justice Amy Coney Barrett asked about fetal heartbeat and living embryos. Her questions seemed to suggest she’s thinking about when life begins and where to draw the line when doctors raise conscious objections to an abortion.

The fact that a doctor performed a procedure to clear the uterine lining, she said, “does not necessarily mean that there was a living embryo or a fetus.”

Some legal scholars expect the arguments over EMTALA’s to spur similar questions, which could signal where the justices stand on fetal personhood rights.

This case presents this sort of broader question of what abortion means in a very stark way, said Kimberly Mutcherson, a Rutgers Law School professor and expert in reproductive justice.

But Mutcherson said she doesn’t think there’s a majority on the court ready to declare fetal rights under federal law. Instead, she said, the decision is likely to embolden states to take on the issue much like it did when it overturned Roe.

Alito was basically saying go forth and make whatever rule you want to and the EMTALA case is another piece to the puzzle, she said.

“It’s another way that the Supreme Court or some justices on the Supreme Court are able to once again signal to states it is their time to shine and their time to decide what they believe in as an individual state, and legislate accordingly,” she said.