How Biden Could Turn a Supreme Court Loss on Abortion Into a Win

If you had asked me at the start of this Supreme Court term what the blockbuster abortion case would be, I would have focused on the one that could limit access to mifepristone, a drug used in a majority of U.S. abortions. But oral arguments last month suggested strongly that the justices might not even think that case has standing — which is to say, that decision is likely not to make much of a difference.

But a decision in the second case, on access to emergency abortions, may have much more profound consequences, both for November’s election and the ongoing struggle over reproductive rights. The case centers on the Emergency Medical Treatment and Labor Act, known as EMTALA, a federal law that was passed in the 1980s to prevent hospitals from turning away emergency-room patients who could not afford to pay. At issue is whether EMTALA requires physicians to offer emergency abortions even when state abortion bans — including those enacted after the overturning of Roe — do not permit them. The Biden administration brought suit against Idaho in federal court, arguing that federal law does pre-empt state policy on the matter.

Listening to Wednesday’s oral arguments, it was hard to say with certainty which side will prevail. But given the questions asked by the court’s conservative majority, and the fact that the court had allowed the state’s law to remain in effect during the litigation, the strongest possibility is that the court will side with Idaho.If that happens, pregnant women facing medical emergencies will be more likely to be refused care, and the Biden administration will face a searing reminder of the risks of litigating before the conservative Supreme Court supermajority. Such a loss for the Biden administration could, at the same time, provide a political opportunity for the Biden campaign — and that could matter deeply in the long term, given the high stakes of this election, not least for abortion access.

The decision will affect more than people seeking abortions. Just last week, The Associated Press detailed the stories of a wide range of patients experiencing pregnancy-related complications, including miscarriage, who were turned away by hospital emergency departments in states with criminal abortion laws. In such states, emergency rooms “are so scared of a pregnant patient, that the emergency medicine staff won’t even look. They just want these people gone,” Sara Rosenbaum, a health law and policy professor at George Washington University, told The A.P.

The Biden administration tried to prevent incidents like these around the country from snowballing by looking to EMTALA, issuing guidance just weeks after Roe was overturned asserting that the federal law pre-empts state law on this matter. The administration then took Idaho to court, arguing that EMTALA’s mandate to provide “necessary stabilizing treatment” required doctors to provide abortions to patients in medical emergencies — and that the federal statute trumps Idaho’s law, which makes it a crime to perform abortion except in cases of rape or incest or when “necessary to prevent the death of the pregnant woman.”

This move was a gamble, and not one the administration takes very often: Sooner or later, the case was likely toland the administration before the Supreme Court’s conservative supermajority, with its demonstrated hostility to abortion rights. And indeed, if the court sides with Idaho, that will serve as a powerful reminder that until the Supreme Court’s composition changes, being in federal court may blow up in any pro-choice president’s face.