Justice Sonia Sotomayor questioned Joshua Turner, attorney for Idaho's Office of the Attorney General, during Wednesday’s oral arguments in Moyle v. United States & Idaho v. United States.
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NewsTranscript
00:00 Thank you. Justice Sotomayor? There is a difference between stabilizing a person
00:06 who presents a serious medical condition requiring stabilization than a person
00:14 who presents with a condition, quoting Idaho's words, where there is a
00:23 woman who poses a great risk of death to the pregnant woman. You agree there's
00:33 stalight between the two? We agree and I think this is most important. And so there will be some
00:37 women who present serious medical condition that the federal law would
00:44 require to be treated who will not be treated under Idaho law? No, I disagree
00:48 with that. Idaho hospitals are treating these women. They're not treating these
00:53 women with abortions necessarily, Your Honor. That's my point. Just answer the point, which is they will
01:00 present with a serious medical condition that doctors in good faith can't say
01:06 will present death but will present potential loss of life. Those doctors,
01:13 potential loss of an organ or serious medical complications for the woman, they
01:20 can't perform those abortions. Your Honor, if that hypothetical exists, and I don't know of a
01:25 condition that is so certain to result in the loss of an organ but also so
01:31 certain not to transpire with death, if that condition exists, yes, Idaho law does
01:37 say that abortions in that case aren't allowed. And I think... All right, let me stop you there
01:41 because all of your legal theories rely on us holding that federal law doesn't
01:49 require, cannot preempt state law on these issues. And so when I asked you the
01:55 question, if a state defines likelihood of death more stringently than Idaho does,
02:04 you would say there's no federal law that would prohibit them from doing that?
02:09 Well, I would say that EMTALA does not contain a standard of... So there is no
02:14 standard of care. In your briefing you made these SG's position here, and you
02:21 almost argue that now, that their position that federal law requires
02:29 stabilizing treatment and not equal treatment of patients, which was a
02:34 position you took in your brief. You seem to have backed off from it here. You seem
02:39 to agree that federal law requires some stabilizing condition, whether or not you
02:45 provide it to other patients. But I have a countless briefs that say that both
02:51 that HHS has filed that pre-DOTS, pre-2009, this is not an unprecedented
02:58 position, that HHS in countless situations cited hospitals for
03:06 discharging patients who required an abortion as a stabilizing treatment.
03:13 Congress discussed that topic in the Affordable Care Act and explicitly said
03:27 that nothing in the Affordable Care Act shall be construed to relieve any
03:33 health care provider from providing emergency services as required by state
03:38 or federal law. Medical providers have told us that for decades they have
03:46 understood both federal law and state law to require abortions as stabilizing
03:52 conditions for people presenting serious medical risk. Lower courts, there's at
03:58 least cases of lower courts saying you have to provide abortion. So this is not
04:04 a post-DOBS unprecedented position by the government. It absolutely is. In
04:10 footnote 2, the administration cites to two spreadsheets that contain a hundred
04:14 and fifteen thousand rows of enforcement instances. The administration has not
04:19 identified a single instance. Council, pre-DOBS this wasn't much of a question, but there
04:24 is HHS guidance and there's at least three cases in which it was invoked. The
04:31 fact that we didn't have to, that HHS didn't have to do it much before
04:35 pre-DOBS doesn't make their position unprecedented. My point is more fundamental,
04:41 Your Honor. It's not just that there are few instances, there are no instances, and
04:45 not just on the issue of abortion. On any instance where HHS has come in and told
04:50 the hospital you have to provide a treatment that is contrary to state law.
04:53 and this isn't just about abortion.
04:55 Consider opioids.
04:56 Oh, now we're back to that.
04:57 Okay.