“Enormous implications”: Legal experts say Alito’s abortion dissent signals a “gathering storm”

Supreme Court Justice Samuel Alito’s dissent in a Thursday ruling on an Idaho lawsuit over a federal emergency medical treatment law opens the door to more attacks on abortion access as well as Congress’ own spending power, legal experts say.

In a dissent authored by Alito and joined by Justices Clarence Thomas and Neil Gorsuch, the conservative justices argued that the Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals participating in Medicare to “stabilize both ‘the woman’ and ‘her unborn child.’”

The dissent also focused on another key aspect of how the federal government has enforced its policies nationwide: relying on the Constitution's Spending Clause to justify its authority to attach conditions to federal grants.

In a separate concurrence, Justice Amy Coney Barrett said that lower courts should address the Spending Clause issue. She wrote that the Idaho petitioners "raised a difficult and consequential argument" about whether Congress can "obligate recipients of federal funds to violate state criminal law."

"To me, that's a gathering storm," New York University Law professor Melissa Murray told Salon.

Following the overturn of Roe v. Wade in June 2022, the Biden administration sent guidance to hospitals nationwide reminding them of their obligation to offer stabilizing care, including medically necessary abortions, under EMTALA.

The Supreme Court’s one-line order Thursday allowed Idaho to continue prohibiting abortions except to prevent a pregnant patient’s death – even though the federal government argued EMTALA preempted Idaho’s law and requires Medicare-funded hospital care to provide essential emergency care. The court said it had “improperly granted” its decision to review the Ninth Court’s decision agreeing with the U.S. government before the appeal went through the U.S. Court of Appeals.

Meanwhile, in the much more populous Texas, a federal appeals court in January allowed the state to ban emergency life-saving abortions despite EMTALA.

Alito’s dissent represented a “complete disparagement of concern for women’s health, for pregnant patients’ health," said Maya Manian, professor of law at American University Washington College of Law.

She pointed to a sentence where he put quotations around the phrase the “‘health’ of a pregnant woman.”

She said the quotations made it seem as if health is “sort of a phony concern.”

Alito defended Idaho’s law – which only allows abortions to prevent the death of the pregnant patient – by arguing that that law does not “require that the risk of death be particularly immediate.”

Manian said Alito is arguing that pregnant people’s lives should be left up to the states: “It's really striking the emphasis on protecting the unborn child and the deemphasis of the pregnant patients.”

Nicole Huberfeld, a Boston University School of Law professor and co-director of the BU Program on Reproductive Justice, said Alito was “grasping at straws” in the dissent.

“Justice Alito’s dissent is his own version of EMTALA that has nothing to do with law's actual history or meaning,” Huberfeld said.

EMTALA, signed by Reagan in 1986, took aim at the practice of patient dumping – when hospitals dump patients who are Black, who can’t pay or are “undesirable” in some other way, according to Huberfeld.

“The idea was, if you take Medicare funding as a hospital and you have an emergency room, then you can't turn people away, no matter who they are, no matter what state you sit in,” Huberfeld said. “Congress enacted this law because there were so many egregious examples of hospitals dumping patients.”

Huberfeld said that hospitals would turn away patients in labor: “And either the pregnant person or the fetus died, or both.”

Hospitals “would say: ‘Well, it’s a danger to the fetus, that’s not necessarily a danger to the pregnant person,’” Huberfeld said.

She said Congress amended the law to ensure hospitals counted labor as a medical emergency.

“It had nothing to do with whether or not an abortion might be necessary to address a medical emergency,” Huberfeld said. “In fact, it didn't need to be, because at the time, abortion was constitutionally protected.”

She said Congress left the decision about what an appropriate treatment would be for a medical emergency to the treating healthcare provider.

“And it did so because there's no way Congress could possibly enumerate all of the instances of what would be necessary for any given medical emergency,” she said.

EMTALA defines an appropriate transfer to a medical facility as in which “the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child.”

The law also allows transfers in certain cases where a physician certifies that “the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child.”

And it defines an emergency medical condition as one that places the “health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy.”

In the dissent, Alito argues that those definitions mean that EMTALA “obligates Medicare-funded hospitals to treat, not abort, an ‘unborn child.’”

He said the law doesn’t mention abortion: “Just the opposite is true: EMTALA requires the hospital at every stage to protect an ‘unborn child’ from harm.”

In footnote 3, Alito also cites the little-known Dictionary Act – a part of the federal code that provides definitions for laws.

In 2002, Congress passed the Born-Alive Infants Protection Act, which amended the Dictionary Act to define “the words ‘person’, ‘human being’, ‘child’, and ‘individual’, shall include every infant member of the species homo sapiens who is born alive at any stage of development.”

That bill also tweaked the federal code to state that the definition of an individual can’t be used to deny “any legal status or right applicable to any member of the species homo sapiens at any point prior to being ‘born alive.’”

The government cited the Dictionary Act’s definition of an individual in filings last year, arguing that EMTALA “carefully distinguishes between ‘the individual’ (denoting the ‘pregnant woman’) and her ‘unborn child.’”

“Accordingly, in the context of emergency medical conditions arising during a pregnancy, the individual to whom EMTALA creates obligations — and allows to choose whether to proceed with treatment – is the pregnant woman,” wrote Solicitor General Elizabeth Prelogar in a November 2023 filing.

In the footnote of his dissent, Alito pointed to the Dictionary Act’s “prior to being born alive” language.

“Thus, the Act itself provides no support for the government’s position,” Alito wrote.

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Legal experts said Alito’s reading of the federal law is incorrect and runs counter to its text, legislative history and context.

They said there's no evidence that EMTALA was enacted or amended to prevent abortions.

“The originalism of Congress' intent was that women should not suffer during their pregnancies, that women should be stabilized if they were in a crisis associated with their labor,” said Michele Bratcher Goodwin, Georgetown professor of constitutional law and global health policy. “And it was enacted at a time in which abortion was lawful as a broad federal matter.”

Murray said the idea behind EMTALA was to protect pregnant people who required care for both themselves and a viable fetus.

“It wasn't an effort to try and entirely take off the table the idea that stabilizing care might include an abortion in a case of miscarriage or pregnancy that was no longer viable,” she said.

Manian said EMTALA also addresses pre-viability — "when there's no chance of saving a fetus in that case, and you're just trying to protect the pregnant patient's health."

Manian and Huberheld also said Alito’s dissent and reading of EMTALA is the latest example of his raising the pro-life movement’s arguments for fetal personhood.

Huberfeld said Alito was using “social movement language” about the unborn that’s detached from the actual history of EMTALA.

“He's trying to find ways to articulate why he thinks an unborn child as he puts it, or a ‘baby’ as he also puts it should be prioritized over the life of the patient,” she said.

The anti-abortion rights movement for decades has advocated for fetal personhood and for the Supreme Court to define a fetus as a human being. Alito raised concern about the "unborn child" in oral arguments over the EMTALA case earlier this year.

Murray said the Supreme Court ruling overturning Roe, Dobbs v. Jackson Women's Health Organization, had “lots of Easter eggs that sort of gesture toward the idea that fetal personhood is on the table and or should be on the table.”

Goodwin said Thomas laid “seeds in the soil” for years in his dissents hoping they would blossom into the Dobbs ruling.

And she said Alito’s dissent could have a similar impact down the line.

“What these justices have done in these cases, where even if there's not the reach of a substantive decision … has nonetheless been a kind of signaling to parties that might take up the kinds of arguments that they are laying out,” Goodwin said. “It’s likely that there may potentially be some sympathy to the kind of argument or the framework making its way through a legislative system or through a judicial system, where the justices recognize their own arguments and are more amenable to their very own arguments.”

Alito and conservative justices have long pushed the idea of fetal personhood – dating back to the Hobby Lobby case that allowed privately-held companies to deny contraception coverage to employees with a religious exemption, according to Goodwin.

“Justice Alito, dating back to the Burwell v. Hobby Lobby case, has been in many ways bleeding into American jurisprudence that which seems to be clearly a part of what is his personal life, because it’s certainly not deeply rooted in American Constitutionalism,” she said.

Goodwin said Alito and other justices have “contorted” themselves to insert their own private beliefs into jurisprudence.

“It's not actually based on the kinds of methodologies that the court has typically aligned itself, or the kind of rule of law practice that has been revered for centuries with the court,” Goodwin said. “But instead it becomes a kind of chaotic mismatch in order to do what some would argue is outcome determinative jurisprudence.. To look at what the outcome should be based on his ideological or partisan views, and then backfilling the opinions in ways that seem far less credible because of what they ignore.”

Goodwin noted that in Dobbs, Alito failed to mention the nation’s relatively high rates of maternal mortality – instead only mentioning maternal mortality rates at the time of Roe.

“That’s an inconvenient fact, so Justice Alito doesn’t mention it,” she said.

Huberfeld also drew attention to Alito’s arguments against how Congress for decades has structured our healthcare laws by using its spending power to attach conditions to the receipt of federal funds.

Alito wrote that such conditions “must be ambiguous” under Supreme Court precedent.

“And in any event, Idaho never consented to any conditions imposed by EMTALA and certainly did not surrender control of the practice of medicine and the regulation of abortions within its territory,” he wrote.

Huberfeld said such arguments could have wide-ranging impacts on programs from Medicare, to Medicaid, to the Children’s Health Insurance Program.

“There are arguments being made that when Congress uses its spending power to enact a law that states don't necessarily have to pay attention to that, that their laws are not preempted by spending power laws,” she said. “Justice Barrett's concurrence is open to that argument, and Justice Alito’s dissent is open to this argument. So there are six justices who are open to this idea.”

Murray said there's a broader skepticism about Congress' authority on the court, which she said has narrowed how Congress can use the Commerce Clause.

"As the Court has sort of narrowed Congress's ability to enact legislation under more traditional vehicles like the Commerce Clause or section five of the 14th Amendment, there's really been an over reliance on the spending plan and conditioning federal grants to the states as a means of affecting certain policy outcomes," Murray said. "Now I think the court is sort of saying, 'Okay, well, how can we limit that too?'"

"I think it'll come up again and in other context, not just abortion," Murray said. "I think that's a broader issue about this sort of power play between the political branches and the court is arrogating authority to itself."

Huberfeld said that Alito, Gorsuch and Thomas’ dissent invite more litigation for advocates to try to limit Congress’ spending power.

“And that has enormous implications for how most social programs work in the United States,” she said.

Legal experts told Salon that the court should have used Thursday’s ruling to hold that EMTALA preempts any conflicting state laws.

“There are just punts until after the election,” Manian said. “And we know who's going to benefit by punting on these cases, especially if the court ultimately holds against those challenges seeking to protect the party seeking to protect abortion rights.”

Murray pointed out that both Justice Alito and Justice Ketanji Brown Jackson noted that the court's Thursday decision "was really about political expediency and not wanting to make a decision on this question at a time when it would be politically inconvenient or would make abortion a bigger issue in electoral politics."