court heard oral argument in consolidated case on whether a federal law preempts an idaho ban on nearly all abortio. that near-ban was initiated in august of 2022 after the.s. supreme court's overturning of e v. wade. the biden administration filed suit against idahoarguing that law conflicts wi a 1986 federal stute that requires emergency care including abortions at hospitals participating in medicare. the justices have through drew and issue a ruling. the oral argument is just over two hours. chief juicroberts: we will case 23-726, moyle versus united states, and the coolated case. mr. turner. mr. turner: thank you, mr. chief justice, and may it please the court: when congress amended the medicare act in 1986, it put emtala on a centuries' old foundation of state law.

states have always been responsie r licensing doctors and setting the scope of their profsial practice. indeed, emtala works precisely cause states regulate the practice of medicine. and thg in emtala requires doctors to ignore the scope of their liced offer medical treatments that violate state ree statutory provisions make this clear. first, section 1395, the medicare act'oping provision, forbids the federal government from controlling the practice of ne. that's the role of state regulation. secondivision (f) in emtala codifies a statutory prumion against preemption of state medical regulations d, third, emtala's stabilization provision is limited to available tnts, which depends on the scope of the hospital staff's medical license. illegal treatments are not available treatments. add in this court's own presumption against preemption ste regulations, combine that with the need for clearnd unambiguous spending clause nditions, and the administration's adg becomes wholly untenable. the administration's misreading

also lacksnyimiting principle. if er doctors can perform whatever treatment they determine is appropriate, then doctors can ignore not only state abortion laws but state regulations on opioid use and informed consent requirements. that turns the presumption against preemption on its head and leavesmergency rooms unregulated under state law. it's unsurprising that crt has endorsed such an expansive view of emtala, and tidobbs, nor had hhs. everyone understands that licensing laws limit medical actice. that's why a nurse isn' available to perform open-heart surgery, no matter the need, no matter her knowledge. the answer doesn't change just because we're talking about abortion. the court should reject the adminion's unlimited reading of emtala and reverse the district cour's judgment. i welcome the court's questions. justice thomas-- normally, when we have a preemption case,

there's some relationship between the parties. the federal government under emtala, or is the atin -- engaged in some sort of quasi-contractual relationship? mr. tueryes, your honor. in this case, the state, idaho, for example, has no state hospitals that participa i-- with the emergency rooms in emtala. and so, in this caere isn't even a quasi-relationship. the parties regulated by emtala here are hospitals and doctors. and i think your question is geing at the armstrong issue, and we think that is a significant question. it wasn't part of e estion presented. we think the indiana amicus brief raises significant questions and deals with that argument well. but the question presented here one of direct conflict between idaho's law and emtala, and on that question, we don't it's hard at all. and, your honors, going to that

direct conflict, i think, if you consider the e limitation within the statute of availability -- justckson: well, before we do that, can i just step back and get your understanding of the statute? you made some representations as to how you see it working. and so let me tell you what i think, and tu can tell me whether you agree, disagree, or otherwise. so i think that the two things that are plain, pretty plain, on the face of this statute. one is that emtala is about the prisn of stabilizing care for people who are experiencin emergency medical conditions statute is doing.i think the and i also think t is operating to displace the prerogatives of hospitals or states or whomever with respect to that fairly narrow slice of the healthcare universe. this idea of emergency medical services is like one very mi

part or small part of -- of the sort of overall healthcare -- provision of healt so what that means is that when a hospital wants to only provide stabilizing care in emergencies ople who can pay for it, for example, emtala says, no, anyone who's experiencing anlize emergency medical con, or when a hospital wants to provide stabilizing treatments to people who are experiencing only certain kinds of emergency cond, emtala says, no, here's the list of conditio you have to provide stabilizing care for those people. similarly, if a state look, it's our job to govern all of healthcare intate and we say that only certain kinds of healthcare can be given to people whoxperiencing emergency medical conditions, we don'want whatever treatment, we want only certain kinds of ent, emtala says, no, we are directing that as a matter presents with an emergencyne condition, they have

assessed and the hospital must do whatever is in its capacity to sta them. is that your understanding of the statute? rner: partially, your honor. agree that emtala does impose a federal stabilization requirement, but the question here is what is the content of that stabilization reqrent, and for that, you have to reference state law. justice jackson: ok. well -- justice kagan: if i could just -- i mean, i think what you ju said is important because, when you concede that emtala impose a stabilization requirement, it is, this statute, the federal government interfering, if you will, in a state's healthcare choices. so emtala is on its face a statute th ss it's not all the state's way. the e federal requirements here. there is a requirement to stabilize emergency patients. and you agree with that? mr. turner: yeah, justice kagan, we agree that emtala -- emtala's purpose was narrow to bridge this gap that existed in some states --

justice kagan:k. so, i mean -- mr. turner: -- and the failure to treat. justice kaga -we can just take off the table this idea that, you know, justecse it's a state and it's healthrethat the federal government has nothing to say about it. the federal government has pltyo say about it in this statute. w,ou're right, now there's a question of what's the content of this stabilization requirement. and as far as i understood your opening remarks, you say, well, this is left to the states. but, if'm just looking at the statute, the statute tells you wh t content of the stabilization requirement is. it's to provide such medical treatment as may be necessary to assure within reonle probabilitth no material deterioration of the condition is likely to occur if the person were transferred or didn't ge care. itells you very clearly it's an objective standard. it's basically it -- you know, it's a standard tt early has reference to accepted medical

practice, not just whatever one doctor happens to in but it's re is the content of the standard. you have to stabilize. whatoethat mean? it means to provide the eaent necessary to assure within reasonable medical obability that no material deterioration occurs. mr. turner: yeah, let me respond in two ways. first, tective standard that you set forth there in that understainis contrary to the administration's view. they say it is a totally subjective standard and whatever treatment a doctor determines is appropriate, that's -- justice kagan: i think tha that's not true. i mean, i think you guys can argue about this yoursf. but, as i understand the solicitor general's brief -- and we' s what the solicitor general says -- but the solicitor general says it's not up to every individual doctor. this is a standard that is objective that incorporates accepted medical standards of care. . turner: well, and the more fundamental point is the definition that you quoted of stabilizing care in the operative position -- provio in (b)(1) is also textually explicitly qualified bth

which is within the staff and facilities available at a hospital. so then we come -- justice jackson: yes. and that'what -- justice kagan: that's quite right. that's quite right. it saywiin the staff and facilities available at the hospital. and if you just look at that laua, i mean, it's absolutely clear that that'no a ference to what state law involves. the staff and facilities available. if you don'have staff available to provide the medical care, then i guessouan't provide the medical care. you don't have the facilities available to provide the medical rethen you can't provide the medical care. a transfer has to take place for e od of the patient. mr. turner: this is a really important -- justice kagan: but this is -- this -- the availabityere, because -- it's the availability of staff and facilities. it's, y kw, do you have the right doctors? do you have enghoctors? do you have the right facilies or is it better for the patient to transfer them to the hospital a few miles away? . turner: you're exactly right. do you have the right door how do you answer that question except by reference to state licensing laws? justice jackson: butou

absolutely can't do that. i mean, that's sort of the initial point that i was trying to make,hich is that the federal mandate is to provide stabilizing care for emergen conditions, regardless of any other directive that the state has or the hospitathat would prevent that care from being provided. that's -- that's the work of the statute. mr. turner: justice jackson, that's not even hhs's conclusion. t state operations manual, which they proffered on pa 3 of their brief, it defines what makes a staff person available under the state,nd they say it has to -- justice sotomayor: counsel, i -- i -- this whole issue -- justice jackson: and does it say that they're not available if state law doesn't -- doesn't allow this procedure? mr. rn: it says they are available to the extent they are operating withinhecope of their medical license. and that is our argument. they want to now draw it far more narrow and look only at physical availabilit we agree that's a component, but there's also aeg availability component here too. justice sotomayor: counsel, the problem we're having right now is that you're sort of putting preemption on its head.

the whole purpose ofreption is to say that if the state passes a l tt violates federal law, the state law is no longer effective. so there is no state licensing law that would permit you permit the state to say don't treat diabetics wi iulin. treat them only with pills, metformin. and a doctor looks at a juvenile diabet a says, without insulin, they're going to get seriously ill and the likelihood --nd i don't know what that means under idaho law, we' get to that shortly -- bau, i don't know, this -- we believe this is a better treatment. mr. turner: justice sotomayor: federal law would say, you can't do that. medically accepted -- objective medically accepted standards o re require the treatment of the medically accepted.

obligation of doctors when they have women with certain conditions that may not result in dut more than likely will result in very serious mecal conditions, including blindness for some, for others, the loss of organs, for some, chronic blood strokes, idaho is saying, unless the doctor can say in good faith that this person's death is likely, as opposed to serusllness, they can't perform the abortion. so i don't know your argument about atlicensing law because this is what this law do. it tells states, your licensing laws can't take out objective medical conditnshat could

save a person from serious injury or death. mr. turner: yeah, i think there are two crucial responses to your poi. let me begin with the preempti subdivision (f) and section 1395 actually are telling hhs, the federal government, and courts just the opposite, that you don't -- justice sotomar:o, it's saying you can't preempt unless there's a direct conflict. if oecve medical care requires you to treat women who are -- who present theottial of serious medical complications and the aborti ithe only thing thatanrevent that, you have to do it. mr. turner: no -- justice sotomayor: idaho law sa t doctor has to determine not that there's merely a serious medical condition but at the person will die. mr. turner: yeah. justice sotomayor: that's a huge difference, counsel. mr. turner: your hwe agree that the -- there is daylight between how e ministration is reading emtala and what idaho'defense of life act permits.

we agree that there's a controversy here. justice sotomayor: no, no, no, no, no, there's rehan a controversy because what you're saying to us iemtala doesn't have preemptive force in not just idaho, it has aavg condition for abortions when it threatens a woman's li. mr. turner: well, wh t -- justice sotomayor: but what you're saying is that no state in the nation -- and there are soht now that don't even have that as an exception to their tibortion laws. what you are saying is that there is no federal law on the book that prohibits any state from saying, even if a woman will die, you can't perform an abortion. mr. turner: your honor, i know of no state that does not ina life-saving exception. but, secondly, the government -- justice sotomayor: some have been debating it at least, if i find one -- butoutheory of this case leads to that conclusion.

mr. turner: i think our point is that emtala doesn't address that very -- justice sotomayor: does your th- chief justice roberts: could i -- could i hear your answer? mr. turner: yeah. in -- the administration's reliance on a standard like best clinical evidence e national norm, i think that's very fraught bau what it really is saying is the text itselfoe't address what stabilizing treatment is required. you go outside the text to professional standards that are oating out there that might change day to day, and that really boils down to a question between a conflict between what the acog says and what idaho law saysand that's not -- chief justice roberts: thank you. thank you, counsel. justice jackson: actually, can i just clarify? because i'm not sure i understand. you know, sort of looking at this from a broader perspective, it seems to me that emtala says u must provide whatever treatment you have the capacity, meaning staff and ties, to provide to stabilize patients who are experiencing emergency medinditions.

cannot provide that treatment unless doing necessary to prevent a patient's death to the extent therement involves abortion. why is that not a direct conflict? you have "you must" in aerin situation, that's what the federal government is saying, and "you cannot if it involves abortion" says idaho. mrturner: i think the nurse example really highlights the reason why, because a nurse might be available. the nurse may be -- may even under the flat must provision in emtala, the administration's reing would say call her into action, put her into the operatin, and open the patient up. justice jackso rht. and -- mr. turner: but that is not -- justice jackson: -- and idaho -- justice kagan: well, that -- jujackson: -- would say no, that's still a conflict so, fine, let's say the -- let's say the administration's position is that nurse can do it. are you suggesting that federal law would not take precedence, would not preempt a state law that says no, she can' mr. turner: well, whether

federal law could do that is a different queshan whether emtala here does do that. and i the answer is clear that it doesn't. i mean, it's like the gonzales v.ren, case where the controlled substances act, you kn, this court noted that that was -- the provisions ther on and -- and assume a medical profession being regulated by state police powers. that's the same with emtala. emtala is a foe statute. congress didn't attempt to addresthstandards of care for every conceivable medical treatment in -- justice kagan: it -- it definitely didn't address the standards of care. it did leave that to the medical community. it said, you know, the -- congress was notoi to address every treatment for every condio but it said you do what is needed to assure non-deterioration. so i guess the question here is, do you concede that with respect to certain medical contis, an abortion is the standard of care?

mr. turner: nouse a standard of care under idaho -- well, shld say, in idaho, there is a lifesaving exception for n abortions, and that is the standard of care. and the standard of care is necessarily set and determined by state -- justice kagan: well, i think you have to concede that with respect to cta medical conditions abortion is the standard of care because your own ate, as interpreted by your own courts, acknowledges that when a condition gets b enough such that the woman's life is in peril, then the -- the -- the docto a supposed to give abortions. mr. turner: and -- justice kagan: and the reason athat's true is that with respect to certain rare but extremely obviously important conditions and circumstances, abortion is the ceed medical standard of care. isn't that right? mr. turner: yes, and that -- that was my point, that there is a lifesaving exception under idaho law. now the question here is -- justice kagan: now -- now the question is, is it also the cepted standard of care when,

rather than the woman's life being in peril, the woman's health is in peril? so let's ta -you know, all of these cesre rare, but wiinhese rare cases, there's significant number where the woman is -- her life inoin peril, but she's going to lose her reproductive organs, she's going to lose the ability to have children in the future, unless an aboronakes place. now that's the category of cases in which emtala says, my gosh, of course, the abortion is necessary to assure that no material deterioration occs. and yet idaho says, sorr n abortion here. and the relts that these patients are now helicoptered out of state. mr. turner: yeah. your honor, the -- the hypothetical you raise is a ve difficult situation, ase situations, i mean, nobody is arguing that they don't raise tough medical questis at

implicate deeply theological and moral questions. and idaho, like oer states, and even congress in emtala recognizt there are two patients to consider in those circums. and the two-patient scenario is -- is tough whenou have these competing interests. justice kagan: you know,ha would be a good response if federal law d t take a position on what you characterize as a toh questionbufederal law does take a position on that question. ss that you don't have to wait until the person is on the verge of death. if the woman is going le her reproductive organs, that's engho trigger this duty on the part of the hospital to stabilize the patient. and the way to stabilize patients in these circumstances, all doctors agree. mr. turner: and idaho law does not require that doctors wait until a patient is on the verge of death. the no imminency requirement. there is no medical certainty requirement. that's -- justice sotomayor: i'm sorry, answerollowing question, and these are hypotheticals that are true.

hold on one second, d you can tell me whether idaho's exception -- and we still go back to the point that even if idaho w lly complies with federal law -- you he pregnant women -- woman who is early into her sontrimester at 16 wes,oes to the er because she felt a gush of fluid leave her body. she was diagnosed with pprom. the doctors belie at a medical intervention to terminate her pregnancy is needed to reduce theea medical possibility of experiencing ssiand uncontrolled hemorrhage from the broken sac. this is a story of a real woman. shwas discharged in florida because the fetus still ha fetal tones and the hospital said she's not likely to die,

but there are going to be serious medical complications. the doctors errefused to treat her because they couldn't say she would e. she wahoified, went home. thne day, she bled. she passed out. ankfully taken to the hospital. there, she receid abortion because she was about to die. mr. turn: ah. justice sotomayor: what you are lling us, is that a case in which idaho, the day before, would have said it's ok to have an abortion? mr. turner: deidaho's lifesaving exception, a doctor could in good faith -- if the doctor could in good-faith medical judgment determine -- justice sotomayor: no. i'm asking you. e florida doctor said, i can't say she's going to die. mr. turner: yeah. and, your honor, my point is that -- justicsotomayor: if your doctor says, i can't, with a medical certainty,he's going to die, but i do know s's going to bleed to death if we don't have an abortion, but e's not bleeding yet, so i'm not sure.

mr. turner: the doctor doesn't need to have medical certainty. justice sotomayor: counsel, answer yes or no. he doesn't have -- he doesn't -- cannot say that there's likely death. he can say there is likelyo be a very serious medical condition mr. turner: yeah. justice sotomayor: -- ke hysterectomy. let me go to ath one. imagine a patient who goes to the er with pprom 14 weeks. again, aboiois the excepted. she's up -- she was in and out of tpital up to 27 weeks. this particular patient, they tried -- had to deliver her baby. the baby died. she had a hysterectomy, and she can noonr have children. all right? you're telling me the doctor there couldn't have done the abortion earlier? mr. turner: again, it goes back to whether a docr n in good-faith medical judgment make -- justice sotomayor: that's a lot for the doctor to risk when -- mr. turner: well, i think it's protective -- justice sotomayor: -- when idaho law changed me the issue whether she's going to die or

not orheer she's going to have a serious medical con. there's a big daylight by your standards, corre mr. turner: it is very case by case. the examples, the prong -- justice sotomayor: that's the problem, isn't it? justice barrett: counsel, i'm kind oked tually because i thought your own expert had said belowthese kinds of cases were covered. mr. turner: yeah. justice barrett: and you're now saying they're not? mr. turner: no, i'm not saying that. that's just my point, your honor, is that -- hedging.barrett: well, you're i mean, justice sotomayor is asking you would thiovered or not, and it was my understanding that the legislature's witnesses said that these wou be covered. mr. turner: yeah, and those doctors said, if they exercising their medical judgment, they could in good faith determine that lifesaving care was necessary. and that's my point. this is a subjective standard. justice barrett: but some doctors couldn't, is -- some doctors might reacntrary conclusion, i think is what justice sotomayor is asking you. mr. turner: and -- and let me -- justice barrett: -- if they reached -- if they reached the conclusion that the legislature's doctors did, would they be prosecuted under idaho law? mr. turner: no. no.

if they -- if they reached the conclusion that the -- dr. reynolds, dr. white did, that ese were lifesaving -- justice barrett: what if t prosecutor thought differently? what if the prosecutor thought, well, i don't think any go-faith doctor could draw that conclusion, i'm going to put on my expe? mr. turner: and that, your hono ithe nature of prosecutorial discretion, and it may result in a -- a case that require -- ste barrett: does idaho put out any kind of guidance? you know, hhs puts out guidance out what's covered by the law and what's not. does idaho? mr. turner: there are regulations. dapa has some regulations. but i think the -- the guiding star herhe planned parenthood v. wasden case, which is lgthy, detailed treatment by the idaho supreme court of this law, and it made clear, the court made clear, that there is no medical certainty requiremt. you do not have to wait for the th to be facing death. justice jackson: counsel, i don't chief justice roberts: thank you, counsel. is there - hapns if a dispute arises with respect to whether or not the doctor was within the confines of idaho law or wasn't?

is the doctor subjected to vi by a medical authority? exactly how is that evaluate because it's an obvious concern. if -- if -- if you have an individual excti for a doctor, and we're having a debate about is that covered by your submission that nothing in idaho law prohibits complying with emtala, i mean, who -- who makes the decision whether or not something's within or without? mr. turner: so, i mean, i -- i imagine there are twwa the law can be enforced or at least two. the board of medicine has licensing oversight over a doct d the idaho supreme court made clear that that doctor's dical judgment is not going to be judged based on an objective standard, what a reaso doctor would do. that's not the standard. the seco w would be if a -- chief justice roberts: well, what -- what is the standard? mr. turn: the doctor's which is subjective.udgment, chief justice roberts: and it's subject to review by any medical board if there'a complaint against the doctor

that -- mr. turner: yeah. chief justice roberts: -- his standards n't comply? let's say he's the only doctor at the plar emergency room, and he has his own particular standard. mr. turner: whatat the idaho supreme court has said is that you may consider another doctor's opinion only oth question of was it a pretextual medical judgment, not a good-faith one. chief justice roberts: thank you. justice thomas? justice alito? justice alito: well, i would thinth the concept of good-faith medical judgment must kento account some objective standards, but it would leave a certain amount of leeway for an individual doctor. that was h interpreted what the -- what the state supreme urt said. now you have been presented here today with very quick summaries of cases and asked to provide a snap judgment about what would be appropriate in those particular cesand, honestly,

i thiny've hardly been given an opportunity to answer some of thhytheticals. but would you agree with me that if a medical doctor, whos expert in this fieldwe asked bang, bang, bang, what would you do in these particular circumstances which i am now gointonumerate, the doctor would say: wait, i don't --hi is not how i practice medicine. i need to know a lot more abt the individual case. would you agree with that? mr. turner: absolutely. and acogasyou know, in the case of prom, for example, acog 't just knee-jerk stay an abortion is the standard of care. acog itself says that expectant management is oftentimeshe appropriate standard of care. and so these are difficult question turn on the facts that are on the ground between thor as he is assessing them with his medical judgment that he's bringing to bear but is also necessarily constrained by idaho law. just like everr area of the practice of medicine, state law confines doctoment in

some ways. justice alito: thank you. chief justice roberts: justice toyor? justice sotomayor: there is a difference between stabiling person who presents a serious mecal condition requiring stabilization than a person o presents with a conditn, quoting idaho's words, where eris a -- poses a great risk of death to the pregnant woman. you agree there'daylight between the two? mr. turner: aee, and i think this is most -- justice sotomayor: and so there will be some women who present serious medical condition that the federal law would requirto be treated who will not be mr. turner: no, i disagree with that. idaho hospits e treating these women. 're not treating these women with -- justice sotomayor: stop. mr. turner: -- abortions necessarily, your hor,nd that's an important point.

juicsotomayor: and that's my point. just answer thpot, which is they will present with a serious medical condition that doctors in good faith can't y ll present death but will present potential loss of life. those doctors pential loss of an organ or serious medical complications for the woman. they can't perform those abortions? mrtuer: yeah. your honor, if that hypothetic exists, and i don't know of a -- a condition that is so cta to result in the loss of an organ but also so certain not to transpire with death. if that coitn exists, yes, idaho law does say that abortions in that case aren't allowed. i think -- justice sotomayor: all right. that -- let me stop u ere because all of your legal theories rely on us holding that federal law doesn't require -- cannot preempt state law on these issues and so, when i asked you the

quti if a state defines likelihood of death more stringently than ida ds, you would say there's no federal law that would prohibit them from doing that? mr. turner: well, i would say that emtala does not contain a standard of -- justice sotomayor: so there is no -- no standard of care. inour briefing, you make the sg's position here, a y almost argue that now, that -- that their position that federal law requires stabilizing treatment and not equal eaent of patients, which was a position you took in your brief, you seem to have backed off from it here, you seemo agree that federal law requires some stabilizing conditi whether or not you provide it to other patients. but i have countless briefs that say that bh that hhs has filed -- that pre-dobbs,

pre-2009, this is not an unprecedented position, aths in countless situations cited hospitals for discharging paents who required an abortion as a stabilizing trtmt. congress discussed that piin the affordable care act and explicitly said thatng in the affordable care act shall be construed to rie any healthcare provider from providing ncy services as requedy state or federal law. medical providers have told us that for decades the understood both federal law and state law to require abortions as stabilizing conditions for people presenting serious medical risk. lower courts, there's at least cas lower courts saying you have to provide abortion. so this is not a post-dobbs unprecedented position by the

goveme. mr. turner: it absolutely is. the --otnote 2, the administration cites to two spreadsheets that ntn 115,000 rows of enforcement ins. the administration -- justice sotomayor: counsel -- mr. turner: -- has not identified a single instance -- justice toyor: -- counsel, pre-dobbs, this wasn't much of a questi but there is hhs guidance and there's at least three cases in which it was invoked. the fact that we didn't have to -- that hhs didn't have to i much borpre-dobbs doesn't make their position -- mr. turner: my point is more -- justice sotomayor: -- unpreceden mr. turner: my point is more ndamental, your honor. it's not just that there are few stces. there are no instances. and not just on the issue of abortion. on any instae ere hhs has come in and told a hospital: you have to provide a treatment that is contrary to state law. and this isn't just about abortion. consider opioids. justice sotomayor: oh, now we're back to that. ok. thank you. chief justice roberts: justice kagan? justice kagan: mr. turner, practicing medicine is hard, but erare standards of care, aren't there? mr. turner: ye tre are. justice kagan: and one of those standards of care with respect

to abortion is that in certain tragic circumstances, as you urself, as your own state's law acknowledges, where a woman's life is pil and abortion is the appropriate standard of care, isn't that right? . rner: that's right. justice kagan: and emtala goes further. it says athe appropriate standard of care can't only be abouprecting a woman's life. ao has to be about protecting a woman's health. that's what emtala says, doesn't it mr. turner: no, it doesn't. it defines emergency medical condition with a broader set of triggering conditions, but the -- the key question here is what is the sbization requirement, and that is qualified by the availability term. justice kagan: the -- the stabilization requirement is -- is written in terms of making sure that a transfer wldot result in a material deterioration as to the emergency condition. nothing about has to be at death's or, right? mr. turner: i think that's

right, yeah. justice kagan: and there is a standard of care with respect that on abortions too, right? if a woman is going to lose her reproductive oanunless she has an abortion, which happens in certain tragic circumstances, a doctor is supposed to provide an abortn,sn't that right? mr. turner: emtala doesn't contain any standard of care. i don't know where the administration is drawing -- justice kagan: do you -- do you diute that there's a medical standard of care that when a woman is about to lose her reproductive organs unless she has an abortion, that -- that doctors would not sath an abortion is the appropriate standard of care in that situation? mr. turner: your honor, what i spe is that there's a national uniform standard of care thaires a top-down approach in all states. idaho has set its own standard of care, and it has drawn the line on a difficult question and it's inconceivable to me to think that congress attempteto answer this very fraught complicated question in a four-page -- in four pages of the u.s. code. it did not -- justice kagan: congress said as

to any conti in the world, if an emergency patient comes in, y're supposed to provide the emergency care that will ensure that that patient does nosee a material deterioration in their health. mrturner: and always within the -- stice kagan: that's what congress said. and the abortion exceptionalism here is on the part of the state saying we're going to accept that with respt every other condition but not with respect to abortion mr. turner: abortion isn't exceptional. justice kagan: -- where we will not colyith the standard of care that doctors have accepted. mrer: your honor, abortion isn't exceptional. ere are numerous cases where states intervene and say the standard of care in th circumstance for this condition is x, not y. opioids, for examp. in new jersey, a doctor cannot stabilize chronic pain with more than a fivdasupply of opioids. in pennsa, it can be seven. in other states, tres no limit. their reading of emtala requir that those limitations get out and you impose a national standard. there are numerous other instances wheres are coming in and saying, in our

state, the practice of medicine must conform to this standar and idaho has done that with abortion. it's doneth opioids. it's done it with marijuana use. there are countless examples, your honor. justice kagan: and your thry -- although the supreme court has narrowed the reach of your statute, your theory wldpply even if it hadn't? i mean, it would app t ectopic pregnancies. it would apply even if there were not a dthxception. i mean, all of your theory would apply mter what, really, idaho did, wouldn't it? the answer is emtala doesn'tink speak to that, but there are other background principles and limitations ke rationale basis review, justice rehnquist, the chief justice recognized -- juste gan: but your theory of emtala is that emtala prmp none of it? that a state tomorrow could y even if death is around the rner, a state tomorrow could say even if there's an ectopic pregnancy, that still that's a -- that's a -- a choice of the state and emtala has nothing to say about that?

mr. rn: yeah. and that understanding is a humble one with respect lism rule of states. it's the primary care providers for their citizens, not e federal government. justice kagan: imabe too humble for women's health, you know? ok. thank you. chief justice roberts: justice gorsuch? justice gorsuch: i just wanted tonderstand some of your responses or efforts to respond to some of the questions that we've heard tay as i read urriefs, you thought -- idaho thinks that in cases of molar and ectopic pregnancies, for example, that -- that an abortion is acptle. mr. turner: correct, your hono justice gorsuch: and the example of someone who isn't immediately going to die but may at some point in the future, that that would be acceptable? mr. turner: it goes back to the good-faith medical standard, but, yes, ifoctor should determine -- cannot determine in good faith that death is going to afflict that woman, then no --

justice gorsuch: so it doesn't matter whether it happens tomorrow or next week or mth from now? mr. turner: there is no immirequirement. this whole notion of delayed care is just not consistent with the idaho supreme court's reading of the statute and what the statute says. justice gorsuch: and the good faith, as i read the idaho supreme court opinion, that -- that controls? that's the end of it? mr. turnerablutely, it is. justice gorsuch: all right. and then what do we do with emtala's definition of "individl"o include both the maand, as the statute says, the unborn child? mr. turner: yeah. it's -- you know're not prohibits abortions.that emtala so, for example, in california, stabilizeatment may involve abortions consistent with what that state law allows its cts to perform. but i think our point with unborn child amendme i1989 is that it would be a very strange thing for congress to

expressly enemtala to requir for unborn en, and it's not just when the child -- when the mothers experiencing active labor. the definition of "emergency medical condition" requires care when the child itself haan emergency medical condition regardless of what's going on and so it would be a strange thing for congress to have regard for the unborn child and yet also be mandating termination of unborn children. justice gouch: thank you. chief justice roberts: justice kavanaugh? justice kavanaugh: i just want to focus on the actual dispu as it exists now, toda bween the government's view of emtala and idaho law, because idaho law has changed since the time of e strict court's injunction both with the idaho supreme court and with a clarifying change by the idaho legislature. you say in your reply brief, and so too the -- the moyle rey brief says, that for each of the condio identified by the

citor general where, under their view of emtala, an abortion must be availleyou say in the replyri that idaho w,n fact, allows an abortion in each of those circumstances, and you go through them on pages 8 and 9 of the reply brief, each of the conditions. there any condition that you're aref where the solicitor general says emtala requires that an abortion be available in an emergency circumstance where idaho law, as currently stated, does not? mrturner: so, certainly, the administration maintains tt there is such conditions. the ones they identify in the affidavits -- justice kavanaugh: what is your -- wt your view? mr. turner: d view is that yes -- and i'm going to reference footnote 5 from the gray bef- the mental health condition situation. thadministration says that's not on the table. that's not a scenar wre abortion is the only stabilizing care required. and i'm not sure where that

construct ofnlstabilizing care comes from because, under thr view, it's the doctor's determination that controls, not this imposed only requirement. but be that as it may, the american psychiatric association -- and si'm taking general prelogar up on her oern footnote 5 that there are no professional organizations that set abortion as a anrd of care. the american psyiaic association, in a 2023 position paper, says that abortions are imperative for mental al conditions. that sounds like a necessity to me. and i don't know how, if a woman presents at seven months pregnant in an idaho emergency room and says, i'exriencing severe depressio this pregnancy, i'm having suicidal ideation from carrying t pregnancy forth, that that wouldn't under the admisttion's reading be the only stabilizing care. justice kavanaugh: so you think the ninth circuipal, when it said every circumstance describebyhe

administration's declaratns involved life-threatening circumstances under which idaho law would allow an abortion, is what the ninth circuit pan said? mr. turner: we agree with that because the conditions identified in the affidavits were all conditions that would fit under the lifesaving exceptio that's telling because, you know, these doctors, when put under oath in an aff, couldn't come up with any of these harrowing circumstances. th intified other ones. but i think what the governmen doesn't want to talk about, again, is the mental health exception here. that is -- i jt n't know how you can read their understanding of -- justice kavanaugh: well, i'm just tryg figure out is there really a -- other than the ntal health, which we haven't had a lot of briefing about, is there any other condition identified by the solicitor gewhere you think idaho lawould not allow a physician in his or her good-faith judgment to perform an emergency abortion? mr. turnernoin their affidavits. they mntn nonetheless that when you compare the definition of what an emergency medical

condition is, it is broader than the definition of the lifesaving exception in idaho law. and so they present this -- justice kavanaugh: well, that's what they -- they say, but then, when we get down to the actual conditions that e sted, the examples -- and justice sotomayor ing through some of those -- you have said in your brief at least that each of the conditions identified by the government, actually, idaho law allows an emergency abortion. mr. turner: and age, and i think the injunction here is also -- justice kavanaugh: well, what's -- whado that mean for what we're deciding here? mr. tuwell, what it means for idaho -- justice kanah: if idaho -- if idaho law allows an abortion in each of the emergency circumstances that is identified by the government as emtala mandating that it be allowed? i mean, the real practical first response is that ida's under an injunction that includes an incredibly broadrement that preempts state law -- justice kavanaugh: right. i nderstand that. and that may mean that there shouldn't be an injunction. i take your point on that. what's your second? mr. turner: my second point, honor, is i don't know how

this court can make the determination on wheerhere are any real-world cons without first answering the statutory interpretation question of whatmta's stabilization requirement actually requires. that has to be addressed, and it has to be addressed not only because that's for the direct justice kavanaugh: well, i was just picking up onoureply brief. you're the one who sd in your reply brief -- mr. turner: yeah. justice kavanaugh: -- that there's actually no -- no real ight here in terms of the conditions. so i'm just picking up on what you all -- you all said. mr. turner: yeah. i understand, your honor. justice kavanaugh: thank you. chief justice roberts: justice barrett? justice barrett: i guess i don't really understand why we have to adthe stabilizing condition if what you say is that nobody has been able to tify a conflict. and on the mental health thing, the sg says -- i just picked it up to chotnote 5 -- "idaho badly errs in asserting that construing emtala accordg its terms would turn emergency s into federal abortion enclaves by allowing pre

termination for mental health concerns." so, if that's the only space that you can idewhere idaho would preclude an abortion and emtala would require one, and the government is saying no, that's not so, what's the conflict? mr. rn: well, your honor, i mean, of course, we think we win whether you find no factual conflict and, therefore, the injunction had to go away. justice barrett: but why? why are you here? i mean, you know, the government says -say -- mr. turner: well, they sued us, your honor. justice barrett: well, hold on a second. u're here because there's an injunction precluding you from enforcing your law. anifour law can fully operate because emtala doesn' idaho's authority to enforce its law, what's -- mr. turner: well, it can't under the injunction because injunction says that idaho's law is preempted in an incredibly broad range ofmstances to avoid -- justice barrett: as -- as it conflicts with emtala, i ought. mr. turner: it -- it -- it is much broader than that. -- and this was based on the proffered injunction by the adration to avoid an emergency medical condition, not in the face of an emergency so what that means is idaho's

law can't even operate when a doctor determines that a conditiot need to be avoided that hasn't yet presented itself. that's far broader than the emergency medical condition an stabilization requirement under emtala because the stabilizaon requirement under emtala is only triggered when there has b determination that -- justice barrett: ok. well, i -- i would like to hear the solicitor general's respon to that. but let me just ask you one oting about the mental health consideration because i can -- i cerstand idaho's point that a mental health exception would be far broader daho law and had the potential to expand the beyond what idaho law permits. but the stabiln requirement only exists up until transfer, right, until transfer is possible? s's hard for me to see how, with a mental health condition, that couldn't be stabilized before needing to transfer, ght? at that point, the idaho -- you're stable, you're notu're immediately going to be

suicidal, we'll leave you in the care of, you know, a parent or a partner who will then seek appropriate ent. mr. turner: well, that flexible view of stabilization iser different than the government's very rigid view of stabilization, which is, if an emergency medical condition lls for an abortion, it's got to be provided right therend then if it's available in this very limited sense. and so the stabilization continuum that you're talking about, i agree, that's built into emtala because -- justice barrett: the statute says until transfer is possible. mr. turner: well, the -- the trsfer provision kicks in if a hospital is unable to stabile a condition. and so, if a patient pses at a hospital and that hospital has the capability, the availability to stabilize the condition, in the case of health, i invite general prelogar to come up here and tell you that i've got it all wrong and that, you know, the mother that i ded would not need to receive stabilization in that circumstance and instead would be transferred to a pshiric hospital or something and that wouldn't nstitute dumping under their reading.

i just do't see how that comports with everything they've said about the rigid view of stabilization that if a condition calls and a hospital can do it, it's got to be done there and then. justice barrett: does idaho have for doctors under state law?tion mr. turner: it does. and there are federal conscience protections as well. and i think thats key point here, your honor. the administration told this court in the fda case that individual doctors are never required to perform an abortion from what i could tell, but that don't extend to hospitals. and so, in the case of catho hospitals, and there are hundreds of them treating millions of patients every year, under the administration's reading, catholic hospitals who faithfully adhere to the ethical and religious directives are now required to perform abortions. justice barrett: is that because no federal conscience exemption applies? mr. turner: i don't know why they say that's the line that they draw between indidu doctors and religious institutions because coats-snowe on its face seems to cover both. justice barret ok. thank you. chief justice roberts: justice jackson?

ice jackson: i'm really surprised to hear you say that idaho law permits everything that the federal law requires. understand that because it seems to me that if that's the case, then why coul't emergency room physicians iido just ignore idaho law and follow the federal standard? i me -- if -- if the state is doing exactly what the -- what the federal law says is quired, if it's ok by idaho, then, fine, we set idaho ade we do what the federal law says and we all go home. mr. turner: well, i mean, our reading, of course, is that there is no conflict. and so as doctors aren't having to make this choice of do i follow emtala or do i follow -- justice jackson: so your reprention on the -- on behalf of idaho is that if a -- an emergency room physicia idaho follows emta iterms of when an abortion is required to stabilize a patient, they will be complying with idaho law such that there's going to be no prosecution and no problem? mr. turner: yes, because they have to complyidaho law to

comp wh emtala. justice jackson: no, no. i'm asking you, if they -- if they comply with emtala, will they necessarily htisfied the requirements of idaho law? because that's what you seemed to say ionse to justice kavanaugh and in response to justice barrett. so i just want to make clear if that's the position o state. mr. turner: emtala -- the scope of emtala's stabilization requirement is necessari determined by idaho law in this case. so -- justice jackson: no. you're sin if they follow idaho law, then they will be following emtala law. mr. turn: ll, i -- justice jackson: i'd like for you to -- i'd like for you to -- mr. turner: -- ihi it's both, your honor. justice jackson: no, it's i'd like for you to entertain other possibility. you seem to be sayinevy situation inhi the united stats here's a stabilization situation that the united states would say the person has to have an abortion,

thphysicians would say we're following emtala and abortion is required, i thought you said in response to justice kavanaugh, yes, idaho law would also say that's a situation in which an abortion is allowed. if that's the case, then it seems to mthe is no daylight, there's no conflict, as y've said, but it's because idaho law is in full complnc saying.at the federal law is we're gettingt ong, you're saying. like this death thing, that's not what we mean. what we mean is whenever it's necessary bilize a patient who is experiencing deterioration, as federal law requires. mr. turner: no. i -- i -- i think i understand the point that you're making. and the best wt i can think of it, your honor, is that emtala's stabilization judgment to determine what is the appropriate stabilizing treatment, right? and how does a doctor exercise medical judgment? well, his training, his ence, perhaps reference to

professional standards of care that are national, but -- justice jackson: how about -- how about mr. turner: -- necessarily state law standas well. justice jackson: -- how about -- that's not justhing you're sort of coming up with. i mean, as jusagan said at the beginning, emtala tells the doctor ho's supposed to decide it in this particular circumstance with reference to e dical standards of care deteriorating in an emergency condition situatio mr. turner: yeah, emtala -- justice jacko, if that's the standard in emtala, are you representing that that is exacat idaho is saying so that all the doctors need to do is follow emtala and they'll be fine under idaho law? mr. turner: well, of c we're saying that idaho doctors need to comply with emtala. the question is how do doctors comply with emtala, and emtala -- justice jackson: let me ask you let me -- i -- i think i understand your point. 're saying idaho is actually -- could actually be requiring more and the federal law has to make them do what idaho says. mr. turner: well, and it's

impothat -- justice jackson: yeah. mr. turner: ala itself, it codifies this presumption of a backdrop of state law. there are background principles here, and that's wh - justice jackson: all right. let me explore that with you for just a second. i i had thought that this case was about preemption and that the entirety of preemption jurisprudence is the notion that the federal government in certain circumstcan make policy pronents that differ from what the state may want or what ody else may want, and the supremacy clause says that the federal government says takes precedent. so you've been saying over and over again ida i you know, a state and we have healthcare policy choices and wve made -- we've set a standard of care in this situaon all that's true. but the question is to what exnt can the federal government say: no, in this situation, ourard is going to apply? mr. turner: and -- justice jackson: thas what the government is saying, and i don't undersow, consistent with our preemption jurisprudence,ouan be saying otherwise.

mr. turner: yeah, if i can put a finer point on it. i don't think it's -- the qu is necessarily what can congress do but what did congress do ith emtala, and -- justice jackson: all right. what did it do here? mr. turner: yeah. it started, it opened the medicare act by saying the federal government not control the practice of medicine. and then, in emtala itself, it says laws are not preempted. and then, when it -- and then, when you get to -- justice jackson: state laws ar not preempted to the extent -- mr. turner: of a direct -- justice jackson: -- or are only preempted to the extent of a direct conflict. and so now we are -- we are identifying a direct conflict. so why is preemption not working there? mr. turner: and -- and whether there's a direct conflicd on this court's longstanding precedent includes clear statement canons that -- we think wen the text. let me be very clear. the text to us is very clear, it'an easy question. but the government's got to come -- oe a lot of other hurdles, one being -- justicson: i hear you saying two things, that we're -- the's not a direct conflict because everything we -- the

federal government requires, we allow, which the amici, ians for human rights, who have looked at idaho's laan says it prevents a lot of things in circumstances in which th federal government would require them, they disagree with y o the facts, but, anyway, you say no conflt cause we actually are doing exactly whor allowing exactly wt e federal government allows. and you say no conflict because the federal government in this situation wanted the states to be able to set the standards. and i i don't understand how that's even conceivable, given this standard, given this statute -- mr. turner: yeah. justice jackson: -- that is coming in to displace state prerogatives. mr. turner: and if i can't convince you on the second, let me add a third. justice jackson: yes, please. mr. turner: and there the clear statement canon. sohepending clause condition nature of this requires congress to speak clearly and unequivocally that it is imposing a abortion mandate. it -- that's not here in e statute. and, secondly, this court's presumption -- justice jackson: but doesn' that make abortion different? i mean, what do you mean? they say provide whatever is necessary to stabilize. so you're saying they'd have to say provatever is necessary, including abortion?

that's the only way that is taken account of here? mr. turner: no, what i'm saying is, when we -- when we go d look at the phrase "available" and what it means, the government -- the adniration is saying, well, they're adding this tag that saysstent with state law. and we're saying no, under the clear statement no it's a presumption against preemption. and what ternment actually -- what congress would need to do if it wanted to preempt this very traal area of state law is to put a tag regardless of sta, and that is missing. justice jackson: thank you chief justice roberts: thank you, counsel. general prelogar. general prelogar: mr. chief justice, and may it please the court: emtala's promise is simp b profound. o who comes to an emergency room in need of urgent treatnt shld be denied necessary stabilizing care. this case is about how that guarantee applies to pregnant women in medical crisis. in some tragic cases, women suffer emergcyomplications that make continuing their

pregnanca ave threat to their lives or their health. a womawhe amniotic sac has ruptured prematurely, for expl needs immediate treatment to avoid a serious risk of infection that could cascade into sepsis and e sk of hysterectomy. a woman with severe preeclampsia can face a high risk of kidney failure thatou require life-long dialysis. in cases like these, where there is no other way to stabilize the woman's medical condition d prevent her from deteriorating, emtala's plain text reqre that she be offered pregnancy termination as the necessary treatment. and that's how this law has been understood andpped for decades. that usually poses no conflict with state law. even states that have sharply restricted access to abortion after bbgenerally allow exceptions to safeguard the but idaho makes ternaon a felony punishable by years of imprisonme uess it's necessary to prevent the woman's death. i think i understood my friend today to acknowledge several times that there is daylight between thattaard and the necessary stabilizing treatment at emtala would require. and the idaho supreme court

recognized the same thing when itpecifically contrasted the "necessary to prevent deat exception and said it was materially narrower than a prior idaho law th h a health exception that tracked emtala. the situation on the ground in idahishowing the devastating consequences of that gap. today, doctors in idaho and e men in idaho are in an impossible position. if a woman comes to an emergency room facing a grave threat to her health, but shi't yet facing death, doctors either have to latreatment and allow her condition to material tmaterially deteriorate, or they're airlifting her out of the statsohe can get the emergency care that she needs. one hospital system in idaho says that right noi's having to transfer pregnant women in medical crisis out of the state about once every other week. tha's untenable, and emtala does not countenance it. none of petions' interpretations fit with the te, and so they have tried to make this case be abouth

broader debate for access to abortion in cases of unwanted pregnc t that's not what this case is about at all. idaho's ban on abortion is enforceable in virtually all of its applications, but in the narrow circumstances involving grave medical emergencies, idaho cannot criminalize t eential care that emtala requires. i welcome the court's questions. justice thomas: general, are you aware of any other spending clause legislation that preempts criminal law? general prelogar: with respect to criminal law in particular, justice thomas, i'm not immediately thinking of relevant cases. we have a whole string cite of cases in our brief at page 46 at reflect times where the court has recognized the preemptive force of spending clause legislation, including in situations whe t funding restrictions apply to private parties, so that could include the coventry health case, for

example. lead-deadwood is another example ts. but i'm not immediately recalling how that would app in criminal law. of course, this court has't drawn those kinds of distinctions in recog the force of the supremacy clause. justice thomas: now the -- normwhen we have a -- a preemption case, it's a guted party who is involved in the suit, and they use it as an affirmative defense example, in wyeth or something. on the -- in this case, you are bringing an acongainst the state, and the state's not regulated. are there otheexples of these types of suits? geraprelogar: sure. i mean, there are numero examples where the united states has sought to protect its sovereign tests in situations where a state has done what idaho has done here and interposed a law that colicts. so i'd point to arizona versus united states as an example of that.

united states vers whington. there are a number of cases where this crtas recognized that the federal government can protect its terests in this kindf eemption action. and, as i mentioned before, th court has a long line of cases recognizing that that prmpon principle applies in the context of federal funding restrictions that apply to private parties too. justice thomas: but even when the rtthat you're bringing the action against is not a guted party? general prelogar: that' correct, because what idaho has done here is directly interfered with the ability of the regulated parties who have taken these funds, federal funds with conditionstthed, from being able to comply with the federal law that governs their behavior. and this was an essential part of the bargain that the federal government struck with hosta in substantially investing in their hospital systems. and what the state has done is said you,

through our operation ofta law, are no longer permitted to comply with this fundamental stabilization requirenin emtala in this narrow category of cases. justice thomas: well, normally, wouldn't it be the regulated party that would actually be asserting the preemption that you're talking about? general prelogar: certainly, i can imagine situations, for ample, where a regulated party woulasrt a preemption defense and to say the state law itself is preempted to the tent that it prevents that party from being able toomy with federal law. but i'm not aware a principle or precedent in this court's case lawggest that that's the only way for the government to protect its sovereign interests. justicthas: that is the normal way, though? general prelari think that that's often the fact pattern of particul ces. justice alito: i don't derstand how your argument about preemption here squares wi t theory of spending clause -- of congress's spdi clause power. the theory is congress c tl a state or any other entity or person, look, her's some money or other thing of value, and if you want to acptt, fine, then you have to accept certain conditions. but how does the congress's ability to do that authorize it to impose duties on another pay at has not agreed to accept this money?

general prelogar: there areo duties being imposed on idaho re it's not required to provide emergency stabilizing treaen itself. the duties are -- are -- justice alito: well, all right. general prelogar: -- applied to thhoital. justice alito: not -- not duties. how can you impose restrictions on what idaho can criminalize simply because hospitals in idaho have chosen to participate in medicare? i don't understand how this sqrewith the whole theory of the spending clause. genel elogar: well, i think that it squares with this cot's long line of precedents cited at -- justice alito: wel -- general prelogar: -- page 46 of our brief -- justice alito: well, i -- i've -- i've looked at them. geraprelogar: -- that the court has recognized that -- justice alito: i've looked at those cases. i haven't found any square discussion of this particular issue. but i -- i'm interested in the

theory. can you just explain how it works in theory? -- generalregar: sure. so spending clause legislation is fedalaw. it's passed by both houses of congress. it's signed by the president. it qualifies as law within the meaning of the supremacy clae, and -- justice alito: absolutely. solutely. general prelogar: and -- and so i think the supremy ause dictates the relevant principle here -- ste alito: no, but what the law general prelogar: -- that in a suaon where -- justice alito: i'll let you finish. yes, go ahead. general prelarin a situation where congress has enacted law, it has full force and effect under the supremacy clause, an what a state can't do is interpose its own law as a rect obstacle to being able to fulfill the federal funding coitns. and this theory, justice alito -- justice alito: no, it's -- i's a -- general prelogar: -- would mean no conditions -- justice alito: -- it's a question -- general prelogar: -- under medicare are enforceable. justice alito:- 's -- no. they're absolutely enforceable against the hospital that chooses ticipate. general prelogar: well, i guess the -- the argument then would be that if a hospital is instead und by the state law and the state law gets to control, it would mean that hospitals couldn't participate in medice at all. and that's not the argument that e ate's making here. what it wants is for its hospitals to bab to accept medicare funding but not have to face the resicons that are attached to those funds as an essential part of e rgain. and there is no precento support that outcome. justice alit wl, i -- i -- i just don't think -- i don't understa h -- how the theory

works. but let me move on to something else. let -- i'm going to try to restate ureneral theory, and i want you to tell me if this is right. i think your argument is, if a woman go tan emergency room and she has a condition that requires an abortion in order to eliminate "'serious jeopardy" to her "health," the hospital must perform the abortion or transf the woman to another hospital where that can be ne is that a fair statement of your argument? genel elogar: so it includes not just serious jeopardy to her health but, obviously, also serious dysfunction h bodily -- justice alito: right. righ general prelogar: -- organs or a serious impairme oa bodily function. justice alito: right. general prelogar: and the other caveat would make is that it would -- it would require pregnancy termination only in a circumstance where that's the only possible way to stabilize her and prevent atascade of health conseens. justice alito: does this apply at any point in pregnancy? general prelogar: so the pregnancy complications that we have focused on genelloccur in early pregnancy, often before the point of viability there can be complications that happen after viabili, t there, the standard of care is to deliver the baby if you need the pregnancy toecause it's causing these severe health consequences for the mom. justice alit well, what if it -- what if it occurs at a point where delivering the baby is not

an optn? you're out of the third trimester, but it's really not anption to deliver the baby. general prelogar: you said that you're in the -- justice alito: out of the first trimester. general prelogar: -- third trimester? justice alito: no. i'm sorry. out of the first tmeer. general prelogar: so, if you're contemplating a situation where delivery is not an option, then i think, in that circumstance, if the only way to prevent grave ri to the woman's health or life is for the pregnancy to end antermination is the only option, then, yes, that's the required care that emtala has through its stabilization mandate. but, critically, in -- in many of these cases -- justice alito: ok. th -- that -- general prelogar: -- the very same pregnancy compcaon means the fetus can't survive regardless. justice alito: i -- i understand that. general prelogar: the's not going to be any way to sustain that prean. justice alito: let me ask you squarely the queiothat was discussed during mr. turner's arment. does the term "health" in emtala mean just physalealth, or does it also include mental health? general prelogar: there can be grave mental health emergencs, but emtala could never require

pregnancy termination as the stabilizing care. ste alito: why? general prelogar: and here's why. 's because that wouldn't do anything to address the deying brain chemistry issue that's causing the -- t mtal health emergency in the first place. this is not about mental health generally. iss about treatment by er doctors in an emergency room. and wh aoman comes in with some grave mental health emergency, if she has happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. she might not be isition to give any informed consent. instead, the way you tre mental health emergency is to address what's ppening in the brain. if you're having a yctic episode, you administer antipsycti. justice alito: well, i -- i really want a simple, clear-cu aner to this question so that going forward everybody wi know what the federal government's position is. does "health" mean only physical heth, or does it also include mental health? general prelog: th respect to what qualifies as an emergencmecal condition, it can include grave mental health emergencies, but let me be very clear about our position. that could never lead to pregnancy termination because that is not the accepted standard of practice to treat any nt health emergency. justice alito: does the term "'rious jeopardy" in -- in (e)(11)(i) mean an immediate serious risk or may a risk of serious consequenc asome future point suffice? general prelogarthe standard is defined in terms of whether

you need immediate medical treatment. and so the relevant questions, the absence of immediate medical treatment, are y gng to have this serious jeopardy to your health, dysfunction of your organswi your bodily systems start shutting down, so it is pegged to the urgency of acute ca in an emergency room. justice alito: so it has to be immediate? general prelogar: the -- the relevant staarunder the statute is phrased in terms of whether the nsequences will occur without immediate trtmt, yes. sot's focused on the tection between having some kind of urgent health crisis that takes you to an emergency room in the first place and then how proximate these -- tse consequences are likely to be. justice alito: well, there are two different things there, whether the persons whether the woman is in immediate jeopardyr ether the person -- the womanee immediate care in order to eliminate

jear at a later point. so i understand your ansr be that the woman need not be in immediate jeopardy, but if she doesn't get care right away, jeopardy at some future point may suffice? general prelogar: so the statutorstdard itself is focused on immediate health risks. i's looking at the possibility that if the woman doesn't get trtment then and there, what wi happen, what will reasonably be expected to occur is that heorns could start shutting down or she might lose r fertility or have other serious health consequences. it is focused on this temporal link between the immediate need for treatment, whi ii think reflective of the fact that congress was narrowly focused on this emergcycute medical situation. justice alito: do the terms "impaiento bodily functions" or "'serious dysfunction of a bodily organ or part" refer only pmanent impairment or dysfunction? general prelogar: i think -- justice alito: or do -- does it also refer to temporary impairment or dysfunction? general prelogar: i think it can also refer to temporary impairment, but'm not sure that it's syo parse the two. for example, a lot of times a pregnant woman in distress, she might start suffering liver damage or kidney malfunconnd

you don't know ex ante whether that's going to be permanent or not. the stction that congress gave in emtala is you need to stabilize to guard against those very serious heah sks. justice gorsuch: general, i'd -- i'd like to -- if you -- yeah, just understand kind of the e ofour argument here on the suprclause and how it operates in your mind, putting aside the -- this case. could the federal goveme condition the receipt of funds on hospitals that they comply with medical ethics rules ovided for by the federal government, a medical malpractice regime, and a medical licensing regime such that effectively all state medical malpractice laws, all state medical licensing laws would be preempted? general prelogar: and you're imagining that this is regulatory action or that congress hasasd a statute creating kind of a federal malpcte regime? justice gorsuch: you call it. general prelogar: i mean, i think i have a broad view of coress's authority to enact statutes, and so what i'd want to assess in that situation is,

you know, whether congress is acting pursuant to one of its enumerated powers. justice gorsuch: spending ause. this is all spending clause. general prelogar: yeah. so -- so i think that very likely congress could make those kinds of judgments and attach conditions to the receipt of federal funds. and, you know, in medicare, e are substantial conditions. justice gorsuch: even if it covers all hospitals in the state and effectively transforms the regulation of medici io a federal function -- general prelogar: you know, there mit be a.-- justice gorsuch: -- storically? general prelogar: -- at which this court thinks that it's really encroaching on the state's prerogatives in ways that are inconsistent with o constitutional structure, but i don't think -- justice gorsuch: you d't -- general prelogar: -- we're anywhere close to that -- justice gorsuch: -- you don't see -- general prelogar: -- in this case. justice gorsuch: but do yose any bounds just in principle? general prelogar: i think the bounds, you know, would have to come from isourt's case law concerning federalism

prciples. the court has said in cases like gonzales versus oreg tt, of course, the federal government has authority to comprehensively regulate on health and set including with respect to medical care. and so i don't think that there's any principle of exclusive governcef this area by the state. but, obviously,'m sure you could construct hypotheticals that really --ce gorsuch: all right. ok. genel elogar: -- seem to be the federal government entirely takingvea state function and maybe that would be subject to a different principle. justice gorsuch: yeah. and ta and -- and medicare allow the federal government to enforce the emtala dictate through civil monetary penalties? nel prelogar: that's correct, yes. ste gorsuch: and also, you can terminate the medicare agreements if a hospital violates emtala in your view? general prelogar: yes. generally, the hospital is given the opportunity to come into compliance and to develop a plan

eure that there won't be future emtala violations. it would obviously be an extreme sanction to -- to terminate medicare funding, but that is a possibility. justice gorsuch: and there's also a private right of action for emtala violations that it have the posbity of equitable relief as well? genel elogar: yes. certainly, monetary relief and -- and possibly equitable relief as well. justice gorsuch: in -- in this case, you -- you -- you brought an eitle cause of action. you didn't cite any statuteo enforce emtala. and one of the rules in equity traditionally at least is that you don't get an equab relief if there's an adequate remedy at law. and as we just discussed, there's a prtyeticulated statute here. seminole tribe says, when you have a reticulated statute and lots of remedialptions, you don't get equitable relief. thoughts? general prelogar: so let me say at the outt at the united states has long been recognized to have an actn equity, an inherent action in equity to appeal to the courts of this -- of this nation to protect its sovereign interests. and that's been reflected in thgs like -- justice gorsuch: its sovereign -- its proprietary tests? you mentioned washington and you mentioned geral prelogar:

arizona versus -- justice gorsuch: -- arizona. general prelogar: -- united states -- ste gorsuch: arizona was an -- general prelogar: -- is another ame of that. justice gorsuch: arizona -- arizona was -- just sorry to interrupt, but arizona was an immigration case and -- general prelogar: right. justice gouc -- the border, and washington was an attempt by a state to impose its worker compensation laws on the federal government in a way different from others. i -- i take those points. and equity is all about proprietary interests and things like that. we have that here? general prelogar: the --el i think that the court -- it's not -- i want to make sure to make clear that there are a long line of cases that stand for this principle, including cases that have addressed it directly like in re debs -- justice gorsuch: oh, debs. general prelogar: -- wyandot, so -- justice gorsuch: do you really want to rely on debs, general? i mean, that wasn't exactly our brightest moment. general prelogar: i do think, though, that it reflects the history and tradition of this nation in recognizing that it's entirely appropriate for the united states to seek ptect its interests in this manner. and let me say, justice gorsuch -- justice gorsuch: what do you -- general prelogar: -- this is a really important issue to the united states. it wasn'prsed below. it wasn't passed upon. justice gorsuch: i'm just tin -- general prelogar: we haven't briefed it at all. justice gorsuch: i'm trying to -- general prelogar: it's not jurisdictional. justice gorsuch: i'm just trying to understand where it comes

from. what is thprrietary interest here? general prelogar: it comes from -- justice gorsuch: it seems to me is --t's your money and how it's being spent, and ress has given you lots of tools. general prelogar: i think it also comes from the recognition under obstacle preemption principl tt there are important functions to be served by having the medicare program inla. and idaho has directly interfered with the abilitof hospitals to accept these federal funds when they stand willing and able to comply with emtala's maat and fulfill congress's sire here to make sure thanoatter where you are in this country, if you have an urgent medical need and you go to an er, you can be stabilized. justice gorsuch: thank you. justice jackson: general, is there -- chief justice roberts:

counsel, your friend on the other side saith your position would require religiously affiliated hospitals with emergcyooms to perform abortions. was heig? general prelogar: no. my friend was wrong. the e federal conscience protections that apply at the enty level to hospitals as well. the key provisions are in the weldon amendment and also coats-snowe, although at depends on the residency program of a particular spal. now hhs said in a 2008 rulemaking on conscience protections that it had never come across a hospital that had a blanket objection to providing li-pserving and health-preserving pregnancy termination care, buif spital had that kind of objection and hhs recently informed me they still have not come across that hospital, that would be honored vis-aishs's enforcement ability. chief justice roberts: you said that applies at e tity level. can individual doctors in the emergency room -- do they have a conscience exemption? neral prelogar: oh, yes. yes. they're protected uerhe church amendments principally. and our position is that emtala does not override either set of coce protections. so, if an individual doctor ha a conscience objection to providing pregnancy termination, emtala itself impose obligations at the entity level, and the hospalhould have

plans in place to honor the indivialoctor's conscience objection while ensuring prriate staffing for emergency care. chf stice roberts: well, does that -- does that mean that there must be somebody in e emergency room that can provide an abortion? what if -- what if trere two doctors, three doctors, and they all have a coniee exemption? general prelogar: no. in that circumstance, emtala could t erride those individual doctors' conscienc protections, but my understanding is that as a matter of best practice, because hospitals wabe able to provide emergency care, they do things like ask doctors to articulate their objections in advance so that that can be takein account in making staffing decio and who's on call. hospits ve a lot of plans in place -- chief justice roberts: are -- are you saying -- general prelogar: -- for these kinds of contingencies.

chief justice roberts: yeah. are -- are you saying that there must be somebody available and on call in -- in a hospital of that sort? general prelogar: e nditions of participation for medicare require hospits be appropriately staffed to provide emgency treatment. now, in a situation where a hospital doe't -- hasn't done that and it doesn't have anyone on hand who can provide care, you know, maybe all of the doorcalled in sick that day and there's just literally no one in the emergency room, or in this case, if everyone conscience objection, then the hospital would not be able to provide the care. but there are conditions of participation that are meant to ensure that there isoo governance of hospitals and organizaono account -- chief justice roberts:heyou say general prelogar: -- for these situations. chief justice roberts: -- and the consequence of them not being able to provide the care would be what? general prelogar: in that ciance, i think they would likely be out of compliance with the conditions of participation that require them to appropriately staffed. but, if the question is could you force an individual doctor to step in then over conscience objection, the answer is no. and i want to be really clear chief justice roberts: i know, but the question -- genel prelogar: we don't understand emtala to displace it. chief justice ro excuse me. the question is whether or not they must have available someone who can comply the procedures required by emtala. and what would be the conseque they didn't? would it be eventual termination of theircipation in medicare? general prelogat's right. so, if a hospital was

conty disobeying the requirement to have in place sufficient persoo run their emergency room, then i imagine that hhs would, through enforcement action, work with that hospital to try tbrg it into compliance. and if the hospital ultimately is just leaving itself in a position where it n ver provide care, then it would terminate the medicare fundi agreement. justice gorsuch: i thought -- justice barrt:eneral -- justice gorsuch: -- you just said a minute ago -- i'm sorry. justice barrett: oh, n g ahead. justice gorsuch: i thought you -- i just wa tclarify this colloquy. i thghyou said a minute ago, though, if the hospital had a conscien oection and therefore didn't provide certain re, that that wouldn't render it out of compliance. which is it? general prelogar: that's correct. justice gorsuch: ok. all right. general prelogarsohe hospital could assert a consciencebjtion -- justice gorsuch: that'all. general prelogar: -- and emtala would not override that. justice barrett: my question - i have a questn out the hyde amendment. so i gather from theriing that there might be some situationsn ich emtala would require an abortion, but the hyde amendment wouldn't permit federal ndto be used to pay for it. and you said in yo bef that emtala requires in other circumstances as well stabilizing treatment to be given that federal funds don' cover. n u give an example of that? and am i right about the hyd amendment? and then can you give an example of that? general prelogar: yes. so you are right about both things. it is common undermta that hospitals are going to have to provide care where tr's not federal funding available. and i'll give you an example of a medicare patient who goes in

and his emergency medical coitn means he needs a particular drug that's not covered by medicare benefits. still, the hospital has to pride him with stabilizing treatment and give him tha medication, even though the deral funding isn't going to pay for it. d at also applies to people who are uninsured, who aren't ved by medicare in the first instance. the -- the whole pntf emtala was it doesn't matter your ciumances, it doesn't matter whether you can pay or not, it don't matter the particulars of your situation, this is a guarantee. u n get stabilizing treatment. i want to say, though, that don't think there's any consistency between the lines congress drew in emtala and hyde. and congress itselha recognized that these statutes address discrete issues. i'm thinking here of the provision in the affordable care act that was exclusively about abortion, and there, congress said nothing in the aca displaces hyde and the other federal funding restrictions on on, but also, nothing in requirement to stabilize.s and that shows twos. it shows first that congress recognized that stabilizing care can sotis be pregnancy termination. and i think it also showed

co's recognition that these statutes addressed their own distinct spheres. and one final point on hyde, my friend isn't drawing a line based on hyde eitherse his point is, even if a woman is on the brink of death and she goes to an emergenc and there are federal funds available under hyde to treat her, still, hospitals have no obligation under emtala tprovide that care. justice barrett: so what about the colloquy i was having with your friend about what stabilizing treatment entails -- let's imagine a situation in which a woman is, i don't know, 10 weeks, anisold that if you carry this pregnancy to term, it could have,ounow, consequences for your health, but you just would nd abort before, like, say, 15 weeks, something kehat. so there's not an immediacy, like -- so she'stable when she leaves the hospital, but in idaho, there's no place else that she cano least until she's 15 weeks. what is e deral government's position then? general prelogar: i thk,f i'm understanding the hypothetical correctly, that she ke wouldn't have an emergency medical condition in the first place because the definition of having an emergency medical condition is that, without immediate trt, you are reasonably -- you will reasonably be expecte to have serious dysfunction of your organs or serious pairment of your bodily functions. and so, in that situation a woman is somewhat high risk, you know, maybe she -- she has certain complications where

docan say there's some danger with continuing this pregnancy, i don't think that that creates t kd of emergency medical condition that emtala is meat. justice barrett: ok. last question, and this is about the sp clause issue. so it does seem odd -- and i think kind of what some of the questions are getting at -- it does seem odd that through a de agreement between a private entity and the federal governmee private entity can get out of state law, right? so, in another administration, would it be possible the reliance on the spending power for congresay, you know, any hospital that takes these funds cannot perbortions or any hospital -- despite state law requiring -- a ste constitutional amendment requinabortion to be available, is that possible or, u ow, with gender reassignment surgery? i mean, you can imagine it kind going back and forth through spending clause litigati i ways that would be unusual. general prelogar: yes, i think congress has broad power under the spending clause to attach conditions. now it doesn't mean tt 's wholly unlimited. obviously, congress ulbe having to act pursuant to an enumerated power, it would have to comply with other constitutional limits, and so

the law would habe valid. the spending clause itself has built-in limits, things like relatedness and pure notice. justice barrett: so it would have to be acting pursuant to an enumerated power in forbidding geereassignment surgery or abortion or those sorts of things? general prelogar: oh, no. i just meant that it would have to be valid spending. justice barrett: the spending clause? general prelogar: the spending clause. juice barrett: the spending clause. general prelogar: -- itsel would be enough. justice barrett: ok. ok. general prelogar: yes. so we think justice gorsuch: yeah. so -- general prelogar: -- the spending clause itself would be enough. justice gorsuch: -- so just to follow up on that and going back to where i started with could -- could the federal government seially regulate the practice of medicine of the states through the spending clause, the answer, i think, is yes, congress could prohibit gender reassignment surgeries across theatn, it could ban abortion across the nation, through the use i spending clause authority, right? generaprogar: congress does have broad authority under the spending clause. and, yes, if it satisfies the

cons that the spending clause themself -- itself requires, then i think that that uld be valid legislation. justice gorsuch: how -- general prelogar: and the court has in many contexts recognized -- justice gorsuch: how do we -- genel elogar: -- the spending clause legislation preempts. soo stice -- justice gorsuch: so the -- the answeis yes? ok. so how do we recci that with the statement in 1395 that nothing in this subchapter allows a federal officer to erse any control over the practice of medicine? general prelogar: so, at the outset, i think, if congress itself is doing itth that provision is inapplicable by its own terms. that's looking at the -- justice gorsuch: you don' think it informs our view and unrstanding of the statute in any way? general prelogar: well, thk, in the event of some kind of direct conflict, you know,

looking at emtala in particular, it's the later in time enacted statute, and it's clearly more specific, so it would control. but this court itself has rejected the idea that there would behat kind of conflict. and i'm thinking of the cms vaccine case where the litigants lied on this exact same section 1395, and this courtt, said no, that can'bear the weight that those litigants could place on it or it call into question all of the conditions of participation medicare. justice gorsuch: do you agree that our cle stement rule with respect to spending clause legislation, our statement rule with respect to federalism are in play general prelogar: i think that here, congress has spoke clearly with respect to what oh, i -- i -- general prelogar: -- are supposed to d justice gorsuch: that's not the question. do you those presumptions apply? forget about w you can satisfy them. general prelogar: the requt of clear notice under spending clause legislates, i think that that does apply, and providers have always unod their obligations under emtala. justice gorsuch: ok. justice jackson: general, let me ask you to respond to a couple of things petitioners' counsel

said and just give you the opportunity to respond. he suggested or said that you haven't identified a circumstance in which something that emtala requires idaho wouldn't allow. and i -- i didn't get a chance tosk him, but i took -- i took him to sort of mean that the way that idaho's statute operates, it basically allowfoa doctor to say, well, in my view, you know, th hlth-threatening circumstance could eventually lead to death, and so i'gog to do it. , to the extent that doctors are still able to do that, guess, he's saying there's no preemption. but is it true that there really isn't in operation a difference between the tw--he emtala and what ihoas required here? general prelogar: no. that is gravely mistaken on threlels. it's inconsistent with the actual text of the idaho law. it's inconsistent with medical reality. and it's inconsistent with what's happinon the ground. and this is a really important point, so let me try to unpack this. on theexitself, idaho's law only allows termination if it's necessary to prevent death. and that is textually very narr cpared to what emtala requires with the category of harm to begin with. in idaho, doctors have to shut theiey to everything except death, whereas, under emtala, you' sposed to be thinking about things like, is she about to lose her fertility?

is h urus going to become incredibly scarred because of the bleedi? is she about to undergo the possibility of kidney failure? so i think tt at is one critical distinction. the other critical textu distinction is the idea of necessity. under idaho law,ouave to conclude that deatwi necessarily result, which is also materially different, and the idaho supreme court specifically recognized it. cond, with respect to the actual medical reality here, there are numerous conditions that we are worried about er a doctor's immediate concern is not death. that's a far more remote possibility. ey're thinking about the health circumstances that ta guards against. and let me give you two expl. the first is pprom, premature rupture of the membres we have declarations at 594 that explain this in detail and ao at ja 615 to 617. what the docrsxplained there -- this is dr. fleischer and dr. oper -- is a woman comes in with pprom, her sac is ruptured. e's no chance the fetus is going to be able to survive, but at that point, she doesn't have active signs of feion, and so, until she deteriorates, you can't think she'close to death. what you're worried about is she will become infected. she might develop sepsis. she might have tseramatic consequences for her future, but it's not about at so i think that is one example where you c't do it. and then, finally, just the actual practice on the gun women in idaho today are not getting treatment. they are getting airlifted out of the state to salt lake city and to neighboring states whe

there are health exceptis d there are laws because the doctors are facing mandatory minimum two years inrin, loss of their license, criminal prosecution. the doctors can't provide the care because until they can conclude thaa prosecutor looking over their shoulder wot send-guess that maybe it wasn't really necessary t prevent death. f justice roberts: thank you, counsel. justice thomas? justice alito? justice alito: we've now heard -- let's see -- an hour and a half of argument on isase, and one potentially very important phrase in emtala has hardly been mentioned. maybe it hasn't even been meioned at all. and that is emtala's reference to the woman's "unborn child." isn't that an odd phrase to put in a statute that imposes a maatto perform abortions? have you ever seen an abortion statute that uses the phrase "unborn child"? general prelogar: it's not an odd phrase when you look at what congre doing in 1989. there were well-publicized cases where wore experiencing conditions, their own health and life were not in danger, but the fetus was in grave distress and

hospitals weren't treating them. so what congress did -- justice alito: wele you seen -- general prelogar: -- is that it -- justice alito: --you seen abortion statutes that use the phrase "unborn child doesn't that tell us something? general prelogar: it tells us that congress wanted to expand the protection for pregnant women so that they could get the same duties to sand stabilize when they have a conditn at's threatening the health and well-being of the unborn child. but what it doesn't suggest is that congress simultaneously displaced the independent preexisting obligation to treat a woman who herself is facing gre life and health consequences. justice alito: well, let's walk roh the provisions of the statute that are relevant to this issue regarding the status and the potential interests of an unborn child. under (b)(1), if a woman goes to ital with an "emergency medical condition" -- that'the phrase -- the hospital mt either stabilize the condition or, under some cirmsnces, transfer the -- the woman to anothefality. so we have this phrase, "emeen medical condition," in that provision. and enunder (e)(1), the term

"emergency medical condition" is defined to include a condition that plas e health of the woman's unborn child in serious jeopardy. so, in that situation, the hospital must stabilize the threat to the unborn child. and it seems that the plain meinis that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty. general prelogar: but, in a circumstance -- justice alito: now -- and you -- you go -yo go so far as to say that the statute is clear in your favor. i -- i don't know how you can say that in lighofhe -- of those provisions that i just read to you. general prelogar: the statute did nothg displace the maherself as an individual th an emergency medical condition when her lifisn danger, when her health is in

danger. that stabilization obligation equally ru ther and makes clear that the hospital has to give h nessary stabilizing treatment. and in many of the cases you're thinking about, there is no possible way to -- to stabilize the unborn child because fetus is sufficiently before viability that it's inevitable that the pregnancy is going to be lost, but idaho would deny women treatment in that circumstance -- justice alito: doesn't general prelogar: -- even though it's senseless. justice alito: doesn't what i've read to you show that the statute imposes on the hospital a duty to the woman certainly and also a duty to the child? and dsn't tell the hospital how it is to adjudicate colis between those interests and it leaves that to state law. now maybe a lot -- most of your argument today has dedicated to the proposition that the idaho law is a bad law, and that may well be the cas but what you're asking us to do is to construe this statute that was enacted back during the reagan administration and signed president reagan to mean that

there's an obligation under ceain circumstances to perform an abortion even if doing that is a violation of state law. general prelogar: if cgrs had wanted to displace protections foprnant women who are in danger of losing their own lives tir health, then it could have redefined the statute so that the fetus itself is an individual wh emergency medical condition. but that's not how congss structured this. instead, it put the protection in to expand protectiofothe pregnant woman. the duties still run to r. and in a situation where her own life and health is gravely endangeredth, in that situation, emtala is clear. ss the hospital has to offer her stabilizing treatment. justice alito: the -- the only -- general prelogar: and she doesn't have to acce i these are tragic circumstances. and many women want to do whatever they can to save that pregnancy. buthe statute protects her and

gives her that choice. justice alito: the only way you try to get out othstatutory interpretation that i just positeisy focusing on the term "individual." and you say, a-ha, in the dictionary act, "iividual" is defined to excludannborn child or a fetus. that's the only way you can try g out of what i've just outlined. and i't it true that under the dictionary -- that dictionary t definitions apply only if they are not inconsistent with the statutory text? and when you have a text that, certainly, y wldn't dispute the fact that the hospital has a duty to the unborn child where the woman wants to -- wants to ha t pregnancy go to term, it indisputably protects the interests of the unborn il so it's inconsistent with the definition in the -- in the dictionary act. general prelogar: no, not at all. the duty runs to the individual with the emergcyedical condition. the statutmas clear that's the pregnant woman. and,f urse, congress wanted to be able to protect her in situio where she's suffering some kind of emergency and her own health isn't at risk, but the fetus might die. atncludes common things like a prolapse of the umbilical rd into the cervix where the fetus is in grave distress, t e woman is not at all affected. hospitals otherwise ul't have an obligation to treat her, and congress wanted to fix that. but to suggest that in doing so congress suggested that the

woman herself n't an individual, that she doesn't deserve stabilization, i think that that is an erroneous reading of this statute. justice alito: nobody's suggesting that the woman is not an individual and she doesn't -- e doesn't deserve stabilization. general prelogar: well, e justice alito: nobody's suggesting that. general prelogar: -- i think the premise of the question would be that the state of idaho -- justice alito: it wasn'th predicate. it wasn't -- general prelogar: -- can declare that she nn get the stabilizing treatment even if she's about to die. that is their theory of this case and this stut and it's wrong. chief justice roberts: justice sotomayor? ste sotomayor: general, this -- this lack of conflict whi your opposing counsel colleague says doesn't exist, you mentioned a situation where it does. why don't you succinctly state what you -- they admit there's daylight. tell uextly how you define where the daylight exists. generaprogar: the daylight, as i see it, exists on two dimensions. they think that doctors can only provide stabilizing care when the woman is facing death. and we think, no, you can take into accounthis like kidney failure, the risk of a seizure, and life-long neurological impacts seon that.

justice sotomayor: well, they -- th sd the recent decision of the oregon court says you don't need death to be imminent or immediate, i think, is the wor they used if i'm not wrong. general prelogar: so what the idaho supreme court said in that decision is that there's no particular level of imminency and no certain% chce requirement. but what the court couldn't do is turaw from the language requiring the type of harm to exclusively be death. and alsothinherent concept of necessity requiring some gree of imminence, it's true that it's a subjective standard under idaho law, and the court made that clear, but what the idaho supreme court also said is osutors are free to come in and have other medical expts second-guess doctors' decisions by saying maybe you didn't subjectively think s rlly needed it as necessary to prevent death because, look, h -- her sac had ruptured, but she wasn'yet infected. and that's exactly the kind of

situation that leads to women beg driven out of state, dumped on neighboring states by idaho,ndriminalizing the re, the essential care that they need. justice sotomayor: thank you. chief justice roberts: justice kagan? justice kagan: yeah, if you could just talk a little bit about that becseas i understood it, for example, i read recently that the hospil that has the greatest emergency room services in idaho has just in the few months that ts s been in place had to airlift six pregnant women to neighboring stateswheas, in the prior year, they did one the entire year. so, if mr. turner is right about what the state is trying to convey to hospitals about when they'll be prosecuted, like, why is this happenin general prelogar: i think that the reason this is happening is because those doctors can look at the text of the statute itself, they can look at the ido supreme court's decision, which made clear, very cle,

that this was a departure from prior idaho laws that tracked emtala. and they can recognize that their livelihood is on the line, their medical license, their abilittoractice medicine, thr eedom if they have to go to jail and serve one of these minimum two-year sentences of imprisonment, and they simply cannot provide the car en consistent with their subjective medical judgment, because as a matter -- matter of medical reality, for many of these coitns, it's not yet putting a woman at the brink of death or necessary to prevent her death, yet they know thathetandard of care is to provide her with termination because she is just going to getor and worse and worse if they wait it out. and e her important point about this, and i think it goes back to isual stabilization idea, is that, tragically, in many of these cases, the pregnancy is lost. there's t going to be any way to save that fetus because a woman who has pprom at 17 weeks, there is no mecaway to sustain the pregnancy to give the fetus a chance. so in that situation, what iho is doing is waiting for women to wait and deteriotend suffer

the lifelong health consequences wi no possible upside for the fetus. it just stksragedy upon tragedy. juste gan: and it -- it -- it can't be the appropriate -- you know, it's like -- it's become -- transfer is the appropriatstandard of care in idaho. but it c't be the right standard of care to force somebody onto a helicopter. general prelogar: and it's enrely inconsistent with what congress was trying to do in the statut yoknow, one of the primary motivators here was to prevent patient dumpg. the idea was we don't want people to have to go sewre else to get their care. you go to the fit ergency room in your state, and they have to treat you and stabilize you. but this effectively allows states to takenyarticular treatment they don't want their hospitals to provide and dump those patitsut of state. and you can imagine what would ppen if every state started to take this approach. justice kagan: a question on the spending clause questions that y've been asked. i mean, what would -- if you accepted some of these theories, what -- what would the consequenc osomething like that be that we would have to worry about? general prelogar: i think that it would call intoueion any number of federal spending statutes thapride funds to private paie and there are a bunch of them.

you know, there's the medicare system itself, which is of course a major federal spending program. there are funds provided under title vi, under title ix, a t of federal statutes out there that give funds to priva parties and insist on conditions of compliance with the federal funding restctns. . and if the court were to suddenly say that can't preempt contrary state law, then i thi that it would seriously interfere with the ability of the federal government to t its benefit of the bargain in those spending programs. justice kagan: and you menon before that this question has never been aarof this case? general prelogar: that's right. they did n me these arguments in the lower court. they briefly referred t spending clause, but i don't undersndhem to have pressed this argument specifically. and so i thi tt -- the lower courts did not address it. i ink the district court said in a footnote, they briefl refer to it in a footnote of their brief, and it's essentially waived. justice kagan: tha. chief justice roberts: justice -- justice kavanaugh? justice kavanaug've touched on what's happening on the ground, and that's an important consideration in answer to the question of what's happ but idaho is representing -- and i just want to get your sw on this -- that, as i count it,

nine conditions that have been identifiede government where emtala would require that an abortion be available, an aborti iavailable under idaho law. d at's in the reply brief. now, are there other conditions? -- you've ruled outl health. are there other conditions you would identify, or are you just sayi tt that's not really happening on the ground? i think thats part of your answer, but i just want to get a fuller answeonhat. nel prelogar: it certainly isn't happening on t gund. these are the conditions that we're worried about. and i think the problem with my frn's theory that idaho law would permit it is that you just n't square it with the text of the statute. you know, the -- the -- justice kavanaugh: what ifhe were general prelogar: -- the state of idaho -- ste kavanaugh:

i'm sorry -- keep going. general prelogar: well, i just wanted to say they're nothe ultimate authority on what the idaho law means. that's the idaho supre urt, of course. and it has addressed this issue in the plaedarenthood case. ani ink it's really significant that, in planned parenthood, the idaho supreme court expressly contrasted this statute with other statutes that contain healthrerving measures and recognized this was a -- a total departure from that. the legislurwanted to focus exclusively and more narrowly on a "necessary to prevent death" exception. so i think that -- that that esntlly means that the supreme court of idaho has already touched on this issue, d it's no wonder, then, that doctors who are facing these kinds of pregnancy complications, where in their medical judgment it's not necessarily to prevent death yet, but the woman is going to suffer serious health equences, their hands are tied and they can't provide that care under the idaho law. justice kavanaugh: if the -- what's on page 8 and 9 of the reply brief were idaho law,

would there be a problem still? general prelogar: so if we had uthoritative idaho supreme court decision that said iho law allows for termination in the circumstances where emtala wod require it, yes, of course. then the conflict goes away. justice kavanaugh: well -- general prelogar: t can't imagine the court would say that because, of coursehe -- justice kavanaugh: that's not quite what 8 say, but i -- i take your point on that. separate question, dfent category. i think one of the themes on the otr de is that this law passed in 1986 was a very important law addressing a very important problem; namely, the m where hospitals were turning away poor and uninsured patien came in for emergency care. d the idea was that can't happen. we can't allow hos in this country to turn away poor and uninsured people i emergencies. but their theme is that the law was not designed contextually to deal with specific -- with ab or other specific kinds of care. and so they make a textual argument, but i think they also make a broader contextual argument about the whole idea of what was going on in 1986. and i want to make sure -- i dot think that's really come up too much. i want t sure you respond to that. general prelogar: i appreciate having the chance to address so at the outset, i don't think they can square that theory with

the text of the statute, which says, in no unceterms, here is the fundamental guarantee. if you havmergency medical condition and you go to an er in this country, they have to stabilize you. theyto give you such treatment as may be necessary within reasonable medical ability to ensure that you don't deteriorate. and, yes, congress did not provide a reticulated list of l possible emergency medical conditions and all possie treatments, but it was very clear that congress set a baseline national standard of careo sure that, no matter where you live in this country, you can't be declid rvice and the -- the urgent urgent needs of your medical condition addressed. an you know, it would be no different if the state had come out and decided to ban epinephrine. that's the siul way to treat anaphylaxis, a severe allergic reaction. that would viotehe statute, and we would be up here making the exactly same arguments, becauscoress didn't want that. if you have anaphylaxis and you go tanr anywhere around this cotry, they're going to give

you epinephrine. and congress mandated that. and i don'see any way to try to draw lines around to exclude pregnancy complications in the very narrow but tragic circumstances where the only way to address the woman's cond and prevent material deterioration is for the pregnancy to end. justice kavanaugh: thank you. chief justice roberts: justice barrett? justice baet so, general, i -- i understand the primary dierence between emtala and the idaho statute to be this heal, at -- that idaho focuses on the risk of life, b the federal government says that tala -- well, emtala says that the health is -- am i right, it's health and life? general prelogar: that's -- that's the principal difference, but i think it's also the difference between necessary to prevent death versus the health concerns would be reasonably expected to cu so i think that that is a stda that builds in a little more space for doctors to take action justice barrett: got it. is the federal goverenaware of any state, other than idaho, that has a law that do n take health into account? general prelogar: there are six other states that have severe abortion restrictions without a health exception. so i think that those are the primary catego ostates we're concerned about here. justice barrett: thank you.

general prelogar: i should -- i should make clear that the some pending judicial challenges in those states, and so thei laws are not always enforceable or in fe right now. justice barrett: besides texas, has the federal government -- has the federal government brought suits silato the one brought in idaho and texas in anofhese other states? general prelogar: to be clear, texas wanoour -- justice barrett: right. ok. general prelogar: -- affirmative litigation. th sd us. but we have not brought affirmative litigation in othe states. d i think it's -- this case has been on a course and idaho's law was particularly severe because at the point at which we sued it seemed to cover ectopic pregnancy, and the state conceded that. now, they have modified the law to exclude that, but it was one of the most pressing concerns because of that. justice barrett: thank you. chief justicrts: justice jackson? justice jackson: gen petitionies pretty heavily principles.atement rule and i wonder wheou might comment on my thought that those principles actually cut against them in ase. as you said, congress set a ne national standard of care. it has said, in no uncertain

terms, that the al must provide stabilizing care to people experiencing emy medical conditions. there was no, as y've said, you know, particular conditions -- or particular tnts talked about, carved out, et cetera. so if a clear statement is requwouldn't it be the requiremenxemption -- of exempting abortion? justice alito has talked about of the exemptions for unborn child. none of them we' like an exemption. nothing that is this clear national standard of care. >> think congress was clearly requiring stabilization. it wasn't exempting particular conditions or particular types of treatment. this court has said there is no canon of duluth -- donaos when you have a provision like that, the fact that you don't have a specific enumeration of

one of its applications does not mean you should read in some side of -- some kind of impli exception. what i think we would ne see is a clear statement that congress meant for you to not provide abortions. >> think it is important to recognize that every relevant actor has understood it this way fr the beginning. then the agency' position all along -- we not aptg a new position. oviders have understood it. they have always provided life-sustaining anhethy stating pregnancy termination consistent wh d tyler. congress rogzed it in the affordable care act. and i inthere is any argument to be made thapele understood what congress is doing the statute. >> tnk you, counsel.

quick than your honor. practice standards as they find them. as justice gorsuch noted, that is what section 1395 said. in the vaccine mandate case that was referenced, that is what the general's office told th crt when is at 1395 does not rui -- does not allow federal officials totate particular trea for particular cases. that is what they are to do here with -- it is -- it is confirmed by subdivision anything that could cody this, to jusceackson's colloquy at the end, that is the point. you do presume that steaw continue to operate alongside impala. you don'presume the opposite. it is supported the operatanual. that is the rosetta stone of intel enforc it tells doctors, it tells cms

enforcement en on the ground that you consir at is in the scope of that doctor's is cee. that is exactly what we are saying. it is also specifically directed -- it requires hospitals comply with state law. that directs hospitals to acquire their hospitals staff. they totly lack any cas history that would support the administration'ting. this always was understood to be the case will you think we wo find those 115,000 instaes a single instance where state law was overridden. and finally, the text. the text qua and tell us

steve dw -- stabilization requirement. we know they can perform open heart surgery and we know debtors can draw blood. it is not just a plain mandate devoid of refencto state law. we know the word available en in common usage incorporates state law. you are just the other day that when considering whether this is availablfohomeless people, it is in a physical and legal sense. there is a physicalion and a legal question. opioidar available in the hospital. eyre on the shelf, physically there. there is a legal question that comes into play there. the same with abortions. in response to the chief justice question, the general said both hospitals and doctors are exempt from andus suppose it weelieved to hear that. inconsistency of thes the utter

administration's meeting. if the establishing requirement is done onhenot to oveid conscious protections, and it cae so specific and include requirement that is in direct conflict with state law. those two do not drive. this court does not lately find a direct conflict. congress must speak clearly. it has not done so here. the ainistration's position ultimately is untethered from any limiting principle. but i think we heard that. there is no way to limit this to abortion. there is no to limit it to idaho. they are 2stes with an abortion law on the books. this isn't going to end with or the six states because l the states that have abortion regulations define the health and the emergcy exception narrower than m tele does. this question will come up in

state after state after state. itt limited to physical health. i know they say there is n circumstance in which a medical ion can require abilization within abortion. now he is just fighting with the american psychiatric association. that is not consistent. it isn't limited to an tele. you will point out the major ng because implications that are at play here. recognize this is usually concerning if the federal government can p private actors to buy the state law. in by enumerated powers. i think they aitted that. the court does not have to answer that question by our

reading. >> thank you, counsel. >> thursday, the u.s. e court hears oral arguments in a case on whether formeident donald trump has presidential immunity against him in prosecution for his alleged role in the attempt to overturn the 2020 election results. our live coverage of the oral argument begins at 10:00 a.m. eastern on c-span, c-span.org and the free c-span video app. it's c-span there is a free mobile app featuring your unfiltered view of what is happening in washington. live and on-demand, keep up with today's biggest event with live streams of floor proceedings and hearings from the u.s. congress. what has events, the court, campaigns and more from the world of politics. all at your fingertips. you can also stay current with the latest episodes of washington journal and schedule information for these bands tv network and c-span radio. plus a variety of compelling

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