two hours. chief justice roberts:e ll hear argument this morning in case6, moyle versus united states, and the consolidated case. mr. turner. mr. turner: thank you, mr. chief stice, and may it please the medicare act in 1986, it put the emtala on a centuries' old foundation of state law. states have always been responsible for licensg doctors and setting the scope of their professional pract indeed, emtala works precisely because stesegulate the practice of medicine. and nothing in emtquires doctors to ignore the scope of their license and offer dil treatments that violate state law. three statprovisions make this clear. firs stion 1395, the

medicare act's opening provision, forbids the federal rnment from controlling the practice of medicine. that's the role of state regulation. second, subdivision ) emtala codifies a statutory presumption agait eemption of state medical regulations. and, thirdla's stabilization provision is limited to available treatments, which depends on the scope of e spital staff's medical license. legal treatments are not available treatments. add in this court's own presumption against preemption of state regulio, combine that with the need for clear and unambiguous spending clause conditionsthe administration's reading become whntenable. the administration's misreading also lacks any limiting principle. whatever treatment theyrm determine is appropriate, then doctors can ignore not only state abortion laws but also state gutions on opioid use and informed consent requirements. th turns the presumption against preemption on its head and leaves emergency rooms

unregulated under state law. it's unsurprising that no court has endorsed such an expansive view of emtala, and until dobbs, nohhs. everyone understands that licensing laws limit medical practice. that's why a nurse isn't available to perform open-heart surgermatter the need, no matter her knowledge. the answer doesn't change just beuse we're talking about abortion. the court should reject the administration'unmited reading of emtala and reverse the district court's judgment. i welcome the court's questions. justice thomas: the -- norma when we have a preemption case, there's some relationship between the parties. is the state being regulated by the del government under emtala, or is the state in -- engaged in some sort of quasi-contractual relationship? mr. turner: yes, your.

in this case, the state, idaho, for example, has no state hospitals that participate in -- with the emergency rooms in emla and so, in this case, there isn't even a quasi-relationship. the parties being regulateby emtala here are hospitals and doctors. and i think your question is getting at tstrong issue, and we think that is a significestion. it wasn't part of the question presented. tnk the indiana amicus brief raises significant qutions and deals with that argument well. but the question presented here is one of conflict between idaho's law and emtala, and on that question, we don't think it'ha at all. and, your honors, going to that direflict, i think, if you within the statute oflimitation availability -- justice jackson: wefore 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 then you can te whether you agree, disagree, or otherwise. so i think that there are two thgs that are plain, pretty plain, on the -- the face of one is that emtala is about the provision of stang care for people who are experiencing emergency medical conditions. that's one thing i think the statutoing. and i also think that it is ing to displace the states or whomever with respect to that fairly narrow slice of the healthcare universe. this idea of emergency medical services is like one very minor part or small part of -- of the sorterall healthcare -- provision of healthcare. so what that means is that when a hospital wants to only provide stabilizing care in emergencies for people whoay for it, for exammtala says, no, i'm sorry, you have to stabilize anyon's experiencing an

emergency medical condition, or hospital wants to provide abilizing treatments to people certain kinds of emergency conditions, emtala no, here's the list of conditions and you haveo ovide stabilizing care for those people. similarly, if a state says, lo's our job to govern all of healthcare in our state and ay that only certain kinds of healthcare can be given to people who are experiencg emergency medical conditions, we don't want whatreatment, we want only certain kinds of treatment, emtys, no, we are direthat as a matter of federal law, when someone prestsith an emergency condition, they have to be as and the hospital must do whatever is in its capacity is that your understanding of the statute? mr. turner: pay, your honor. we agree ttala does impose a federal stabilization requirement, but the question here is ats the content of that stabilization requirement,

and for that, you have to reference state law. justice jackson: ok. well -- stice kagan: if i could just -- i mean, i think what you just said is important because, when you concede that emtala imposes a stabilization requirement, it is, thistate, the federal government interfering, if you llin a state's healthcare choices. emtala is on its face a statute that says it's t all the state's way. there are federareirements here. there is a requirement to stabilize emergency patients. and you agree with that? mr. tueryeah, justice kagan, we agree that emtala -- emtala's puwas narrow to bridge this gap that existed in some states -- justice kagan: ok. i mean -- mr. turner: -- and the failure treat. justice kagan: -- we can jt take off the table this idea that, you know, just because it's a state and it's healthcare, that theedal government has nothing to say about it. the federal government has plenty to say abt in this statute. now, you' rht, now there's a question of what's the content of thistilization requirement. and f as i understood your

opening remarks, you say, well, this is left to the states. but, if i'm just lki at the statute, the statute tells you what the contentf e stabilization requirement is. it's to provide such medical trtmt as may be necessary to assure within reasonable probability that no mateal deterioration of the condition is likely to occur if the person were transferred or didn't get care. so it tells yove clearly it's an objective standard. it's sically it -- you know, it's a standard that clearly ha referee accepted medical praccenot just whatever one doctor happens to think. but it's here is thcoent of the standard. you have to stabilize. what does that mea it means to provide the treatment necearto assure within reasonable medical probabilitth no material deterioration occurs.

. rner: yeah, let me respond in two ways. first, the objective sndd that you set forth there in that understanding is contry the they say it is a totally subjective standard and whatever treatment a doctor determines is appropriate, that's -- justice kagan: i think that that's not true. i meani ink you guys can argue about this yourself. but, as i understand the solicitor general's brief -- and we'll see what thsocitor 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. mr. turner, and the more fundamental point is the defiti that you quoted of stabilizing care in the operative position -- provision in (b)(1) is also textually explicitly qualified by that which is within the staff and facilities available at a hospital. so then we come -- justice jackson: yes. and that's what -- justice kagan: that's quite right. that's quite right. it says within the sffnd facilities available at the hospital. and if you just look at that language, i meani's absolutely clear that that's not a reference wt state law involves.

thstaff and facilities available. if you don't have sta available to provide the medical care, then i guess you can' provide the medical care. if you do't have the facilities available to provide the medical care, then youa't provide the medical care. a transfer has to take place for the good of thpaent. mr. turner: this is a really important -- justickan: but this is -- this -- the availability here, because -- it's the availability ofta and facilities. it's, you know, do yoha the right doctors? do you have enough doctors? do you have the right facilities? or is it better for the patient to transfer them to the hospital a few miles away? mr. turne're exactly right. do you have the right doctors? how do you answer that question excepty ference to state licensing laws? justice jackson: but you solutely can't do that. i mean, that's sort of the initial point that i was trying to make, which is he federal mandate is to provide stabilizing care for emergency conditions, regardless of any othective that the state has or the hospital has that would prevent that care from inprovided.

that's -- that's the work of the statute. mr. turner: justice jackson, that's not even hhs's conclusion. in the state oraons manual, which they proffered on page 36 of their brief, it defines what kea staff person available under the statute, and they y 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. turner: it sayth are available to the extent they are operating within the scope of their medical license. and that is our argument. they want to now draw it far more nroand look only at physical availability. we aeehat's a component, but there's also a legal 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 of preemption is to say that if the state passes a law that violat federal law, the state law is no longer effective. so there is no state licensing law that would permit you --

permithetate to say don't treat diabetics with insulin. trt them only with pills, metformin. and a doctor looks at a juvenile diabetic and says, who insulin, they're going to get seriously ill and the likelihood -- and i do't know what that means under idaho law, we'll get to that shortly -- because, i 't know, this -- we believe is is a better treatment. mr. turner: yeah. justice sotomayor: federal law would say, you can't do that. medically accepted -- objective medically accepted standards of care requi t treatment of diabetics with insulin. the dilly accepted lition of doctors when they have women with certain conditions that may not result in death but more anikely will result in very serious medical cond, 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 serious illness, ey n't perform the abortion. so i don't know your argument about state licensin because this is what this law does. it tellstas, your licensing laws can't take out objective medical conditions that coul save a person from serious injury or death. are two crucial responses toere your point. let me begin with the preemption subdiv(f) and section 1395 actually are telling hhs, the federal government, and courts just the opposite, that you don't -- justice sotomayor: no, it'

saying you can't preempt unless there's a direct conflict. if objective medic ce requires you to treat women who are -- who present the potential of serious medical complications and the abortion is the only thing that can prevent tt,ou have to do it. mr. turner: no -- justice sotomayor: idaho law says the doctor s determine not that there's merely a seoumedical condition but that the psowill die. mr. turner: yeah. justice sotomayor: that's a huge differce, counsel. mr. turner: your honor, we agree that the -- there is daylight between how the administraon is reading emtala and what idaho's defense e act permits. we agree that there's a contversy here. but what i'm saying is that -- justicsomayor: no, no, no, no, no, there's more than a controversy because what you're saying to us is, if emtala doesn't have preemptive force in not just idaho, it has a saving

condition for abortions when it threatens a woman's life. mr. turner: well, when the -- justice sotomayor: but what you're saying is that no state in the nation -- and there are some right now tt n't even have that as an exception to their anti-abortion ws what you are saying is that there iso deral law on the book that prohibits any state om 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 include a life-sinexception. but, secondly, the government -- justice sotomayor: some have been debating it at least, and if i find one -- but your theory of this case leads to that conclusion. mr. turner: i think our point is that emtala doesn'adess that very -- justice sotomayor: does your theory -- chief justice roberts: could i --ou i hear your answer? mr. turner: yeah. in -- the administration's relian oa standard like best clinical evidence or some

al norm, i think that's very fraught because what it really is saying is the text itself doesn't drs what stabilizing treatment is required. you go outside the text to professional standards that are floating o tre that might change day to day, and that reallyoi down to a question between a conflict between what the acog says and what idaho law says, and thats no-- chief justice roberts: thank you. thank yonsel. 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 you must p whatever treatment you have the capacity, meaning staff and facilities, to who are experiencing emergency medical conditions idaho law seems to say you cannotrode that treatment unless doing so is necessa t prevent a patient's death to the extent the treatment invve abortion. why is that not a direct conflict?

you have "you must" in a certain situation, that's what the federal government is saying, and "you cannot if it involves abortion" says idaho. mr. turner: thk the nurse example really highlights the reason why, because a nurse might be available. the nurse may be -- may even think she knows how to, and undethflat must provision in emtala, the administration's reading woulcall her into action, put her into the operating room, and op patient up. and --e jackson: right. mr. turner: but that is not -- justice jackson: -- and idaho -- justice kagan: well, that -- justice jackson:- uld say no, that's still a conflict. ne, let's say the -- let's say the administration's position is that nurse can do it. are you suggesting that federal would not preempt a state law, that says no, she can't? . turner: well, whether felaw could do that is a different question than whet emtala here does do that. and i think the answclear that it doesn't. i mean, it's like the gonzales v. oregon, case the controlled substances act, you know, this coted that that was -- the provisions there rely upon and -anassume a medical

profession being regulated by statce powers. that's the same with emtala. congress didn't attempt tout address the standards 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 sd,ou know, the -- congress was not going to adess every treatment for every condition, but it idou do what is needed to assure non-deterioration. so i guess the question here is, do you concede that with respect to certain medical conditions, an abortion is the standard of care? mr. turner: no, because a standard of care under idaho -- well, i should say, ho, there is a lifesaving exception for certain abortis,nd that is the standard of care. and the standard of care is necessarily set and determined by state -- justice ga well, i think you have to concede that with respect to certain medical conditions abortion is the

andard of care because your own statute, as inrpted by your own courts, acknowledges that when a condition gets bad enough such that the woman's li iin peril, then the -- the -- the doctors are suppose to give abortions. mr. turner: and -- justice kagan: and the reason that that'tr is that with respect to certain rare but extremely obviously important coitns and circumstances, abortion is the accepted medic standard of care. isn't that right? mr. turner: yes, and that -- at 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 accepted sndd of care when, ratherhathe woman's life being in peril, the woman's heal iin peril? so let's take -- you knowal of these cases are rare,ut within these rarcas, there's

a significt mber where the woman is -- her life is not in peril, but she's going to lose hereoductive organs, she's going to lose the ability to vehildren in the future, unless an abortion takes pla. 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 occurs. and yet idaho says, sorry, no abortion here. and the result is that tse patients are now helicoptered out of state. mr. turner: yeah. your honor, the -- the hypothetical you raise is a very difficult situation, and these situations, i mean, nobody is arguat they don't raise tough medical questions that plate deeply theological and moral questions. and idaho, like 22 other state and even congress in emtala recognizes that there o patients to consider in those circumstances. and the two-patient scenario is -- is tough when you have competing interests.

justice kagan: you know, that would be a good response if federal law did not take a position on what you characterize as a tough question, but federal w es take a position on that question. it says that y d't have to wait until the person is on the verge of death. if the woman is going to lose her reproductive organs, that's enough to triggeth duty on the part of the hospital to stabilize the patient. and the way to stabilize patients in these circumstances, all doctors agree. not require that doctors waits until a patient is on the verge of death. there is no imminc requirement. there is no medical certainty requirement. that's -- justice sotomayor: i'm sorry, answer the followingion, and these are hypotheticals that are true. hold on one second, and you ca tell me whether idaho's ption -- and we still go back to the point that even if idaho law fully compesith federal law -- you have a pregnant women -- woman who is early into her second trimeste

at 16 weeks, goes to t e because she felt a gush of fluid leave her body. she was diagnosed with pprom. the doctors believe that a medical intervention to terminate her pregnancy is needed to reduce the real mecal possibility of experiencing sepsis and uncontrolled hemorrhage from the oken sac. this is a story of a real woman. she was discrg in florida because the fetus still had fetal tos d the hospital said she's not likely to die, but there are going to be seous medical complications. the doctors there refused treat her because they couldn't say she would die. she was horrified, wt me. the next day, shbl. she passed out. thankfullyak to the hospital. there, she received an abortio because she was about to die.

mr. turner: yeah. justice sotomayor: what you are telling us, is that a case in which idaho, the day before, would have said it's ok to have an abortion? mr. turner: under idaho'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. the floriddoor said, i can't say she's going to die. mr. turner: yeah. and, your honor, my point is that -- justice sotomayoyour doorays, i can't, with a medical certainty, say she' going to die, but i do know she's going bed to death if we don't have an abortion, but she's t eeding yet, so i'm not sure. 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 likely to be a very serious medical condition -- mr. tueryeah. justice sotomayor: -- like a stectomy.

let me go to another one. imagine a patient who goes to e er with pprom 14 weeks. again, abortion is the eepd. she's up -- she was in and out of the hospital upo weeks. this particular patient, they tried --o deliver her baby. e by died. she had a hysterectomy, and she can no longer have cldn. 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 doctor can 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 protti -- stice sotomayor: -- when idaho law changed to make the ise whether she's going to die or not or whether she'going to have a serious medical condition. there's a big daylight by your standards, correct? turner: it is very case by case. the examples, the prong -- justice sotomayor: that's the problem, isn't ? justice barrett: counsel, i'm kind of shocked actulyecause i thought your own expert had said below that these ki 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 -- justice barrett: well, you're hedgg. i mean, justice sotomayor is asking you would this be covered or not, and it was my understanding that the legislature's witnesses said that these would be cove mr. turner: yeah, and those doctors said, if they were exercising their medical ju, they could in good faith determine that lifesaving re was necessary. and that's my point. this is a subjective standard. justice barrett: but some doctors couldn't, is -- some doctors might reach a contrary 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 lusion that the legislature's doctors did, would they be osuted under idaho law? no. turner: no. if they -- if they reached the conclusion that the -- dr. reynolds, dr. white did, that these wereaving -- justice barrett: what if the prosecutor thought differently? what if the prosecutor thought, well, i don't think any good-faith dcould draw that conclusion, i'm going to put on my expert? mr. turner: and that, your honor, is the natu o prosecutorial discretion, and it may result in a -- a case that

require -- justice barrets idaho put out any kind of guidance? you know, hhs puts out guidance about whats covered by the law and what's not. does idaho mrturner: there are regulations. da some regulations. but i think the -- the guiding star here is the plann parenthood v. wasden case, which is a lengthy, deil treatment by the idaho supreme court of this law, and it made clear, the court ma car, that there is no medical certainty requirement. you do not have to wait for the mother to be fdeat justice jackson: counsel, i don't -- juste roberts: thank you, counsel. is there -- what happens 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 review by a meauthority? exactly how is that evaluated? because it's an obvious concern. if -- if you have an individual exception for a doctor, and we're having a

debate about is that covered by yourubssion that nothing in idaho law prohibits complying with emtala, i mean, who -- who makethe decision whether or not something's within or withou mr. turner: so, i mean, i -- i imagine there are two ways the law can be enforced or at least two. the board of medicine has licensing oversight over a doctor. and the ido preme court made clear that that doctor's medical judgment is not going to be judged bedn an objective standard, what a reasonable doctor would do. that's not the standard. the second way would b -- chief justice roberts: well, what -- what is the standard? mr. turner: the d's good-faith medical judgment, which sjective. chief justice roberts: and it's not subject iew by any medical board if there's a complaint against the doctor that -- mr. turner: yeah. chief justice roberts: -- his standards don't comp let's say he's the only doctor at the particular emergency room, and he has his own particular standard. mr. turner: what -- what the idaho supreme court has said is that you may consider another doctor's opinion only on the estion of was it a pretextual medical judgment, not a good-faith one. chief justice roberts: thank

you. ste thomas? justice alito? justice alito: well, i would think that the conptf good-faith medical judgment must take into accot me objective standards, but it would leave a certain ou of leeway for an individual doctor. that was how i interpret wt the -- what the state supreme court said now you have been presented here dawith very quick summaries of cases and asked to provide a sn jgment about what would be appropriate in those particular cases, and, hontl i think you've hdlbeen given an opportunity to answer some of the hypothetical but would you agree with me that if a medical doctor, who is an expert in this field, were asked bang, bang, bang, what would you do in these particular circumstances which i am now

going to enumeratethdoctor would say: wait, i don't -- this is not how i practice medicine. i need to know a lot more about the individual case. would you agree with that? mr. turner: absolutely. and acog has, you knowhe case of prom, for example, acog doesn't ju ke-jerk stay an abortion is the standard of care. acog itsys that expectant management is oftentimes the appropriate standard of care. and so these are difficult questions that turn onheacts that are on the ground between the doctor as hesessing them with his medical judgment that he's bringing to bear but is also arily constrained by idaho law. just like every other area o the ce of medicine, state law confines doctor judgment in some ways. justice alito: thank you. chief justice roberts: justice justice sotomayor: there is a difference between stabilizing a person who presents a serious medical condiorequiring stabilization than a person who

presents with a condition, quoting idaho's words, where there is a -- a great risk of to the pregnant woman. you agree there's daylight between the two? mr. turner: we agree, and think this is most -- justice sotomayor: and so there will be some women who present serious medical condition that the federal law would require to be treated who will not be treated under idaho law? mr. : no, i disagree with that. idaho hospitals are treati these women. they'reotreating these women with -- justice sotomayor: stop. mr. tuer: -- abortions necessarily, your honor, and that's an important point. justice sotomayo a that's my point. they will present with a serious medical condition that doctors in good faith can't say will present death but will present potential loss of life. those doctors -- potential ls

of an organ or serious medical complications for the woman. they can'rform those abortions? mr. turner: yeah your honor, if that hypothetical exists, and i don't know of a -- a condition that is so certain to res the loss of an organ but also so certain not to transpire with death. if that condition exists idaho law does say that abortioninhat case aren't allowed. and i think justice sotomayor: all right. that -- let me stop you there because all of your legal theories rely on us holding that feralaw doesn't require -- cannot preempt state law on these issues. d so, when i asked you the question if a ste fines likelihood of death more stringently than idaho does, 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: sthere is no -- no standard of care.

in your briengyou make the sg's position here, and you almost argue that now, that -- atheir position that federal law requires stabilizing treatment and not equal treatment of pies, which was a position you took in your brief, you seem to have backed off from it here, you seem to agree that federal law requires some stabilizing condition, whet not you provide it to ottients. but i have countless briefs that say that both -- that hhha filed -- that pre-dobbs, pre-2009, this is not an unprecedented position, that hhs cntless situations cited hospitals for discharging patients whored an abortion as a stabilizing treatment.

congress discussed that topic in the affordable care act and explicitly said that nothing in the affordable care act shall be construed to relieve any healthcare provider from providing emergency servess required by state feral law. medicapriders have told us that for decades they have unrsod both federal law and ate law to require abortions as stabilizing conditions for people presenting serious medical risk. lower courts, there's at least cases of lower crtsaying you have to provide abortion. so this is not a post-dobbs unprecedented position by the government. mr. turner: it absolutely is. the -- in footnote 2th administration cites to two spreadsheets that contain 115,000 rows of enforcement instances. the administration -- justice sotomayor: counsel -- mr. turner: -- has not identified a single instance -- justice sotomayor: -- unl, pre-dobbs, this wasn't much of a question.

but there is hhs guidance and ere's at least three cases in which it was invoked. the cthat we didn't have to -- that hhs didn't have to do it much before pre-dobbdon't make their position -- mr. turner: my point is more -- justice sotomayor: -- unprecedented. mr. turner: my point is more fundamenta yr honor. it's not just that there are few instances. there are no instances. and no on the issue of abortion. on any instance where hhs s 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? justickan: mr. turner, practicing medicine is hard, but there are stanrdof care, aren't there? mr. turner: yes, there are. justice kagan: and one of those standards of care with respect to abortion is that in certain tragic circumstances, as you yourself, yr own state's law acknlees, where a woman's life is in peril and abortion is the appropriate stda of care, isn't that right? mr. turner: th's right. juickagan: and emtala goes further.

it says that the approia standard of care can't only be about protecting aom's life. it also has to be about protecting a woman's health. that's what emtala says, doesn't it? rner: no, it doesn't. it defines emergency medical ion with a broader set of triggering conditions, but the -- the key question here is what is the stabilization 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 would not result in a material deterioration as to the emgey condition. nothing about has to be at death's door, righ mr. turner: i think that's right, yeah. justice kagan: and there is a standard of care with respect to that on abortions too, right? aoman is going to lose her reproductive organs unless s has an abortion, which happens in certain tragic circumstances, a doctor is supposed to provide an abortion, isn't that right?

mr. turner: emtala doesn't contain any standard of care. i don't know where the adminiraon is drawing -- justice kagan: do you -- do you dispute thathe's a medical standard of care that when a won about to lose her reproductive organs unless she has an abortion, that -- that doctors would not say that an abortion is the appropriate standard of care in that situation? mr. turner: your honor, what i dispute is thae's a national uniform standard of care that requires a t-dn approach in all states. idaho has set its own standard e, and it has drawn the line on a difficult question. d 's inconceivable to me to think that congress attempted to answer this very fraught complicated question in a fo-pe -- in four pages of the u.s. code. it did not -- stice kagan: congress said as to any condition in the rl if an emergency patient comes in, you're suppod provide the emergency care that will ensure that that patient does not see a mari deterioration in their health. mr. turner: d ways within the -- justice kan:hat's what congress said. and the abortion exceptionalism here is on the part of the state saying we're going to accept

that with respect to every oer ndition but not with respect to abortion -- . rner: abortion isn't exceptional. justice kagan: -- where we will not comply with the standard of care that doctors have accepted. mr. turner: your, abortion isn't exceptional. there are meus cases where statesntvene and say the standard of care in this rcstance for this condition is x, not y. opioids, for example. in new jersey, a doctor cannot stabilize chronic pain with more than a five-day supply o opioids. in pennsylvania, it cabe seven. in other states, there is no limit. their reading of emtala requires that those limitations get wiped t and you impose a national standard. there are numerous other instances where states are coming in and saying, in our ate, the practice of medicine must conform to this standard. aho has done that with abortion. it's done it with opioi. it's done it with marijuana use. there are countless examples, your honor. justice kagan: and your theory -- although the supreme court has naow the reach of your statute, your theory would apply even if it hadn't? i mean, it would apply to

ectopic pregnancies. it would apply even if there were not a death exception i mean, all of your theory would apply no matter whatrely, idaho did, wouldn't it? mr. turner: if -- yeah, i think the sw is emtala doesn't speak to that, but there are other background principles and limitations like ratioasis review, justice rehnquist, the chief justice recognized -- justice kagan: butoutheory of emtala is that emtala preempts none oft? that a state tomorrow could say even if death is around the corner, a attomorrow could say even if there's an ectopic prnay, that still that's a -- that's a -- a choice of the say about that?a has nothing to mr. turner: yeah. and that understanding is a humble one with respect to the federalism ruloftates. it's the primary care providers for their citizens, not the federal government. humble for women's health, you know? ok. thank you. chief justice roberts: justice gorsuch? justice gorsuch: i just wanted

to understanso of your responses or efforts to respond to se the questions that we've heard today. as i read your briefs, y thought -- idaho thinks that in cases of molar and ectopic pregnancies, for example, that -- that an abortion is acceptable. mr. turner: correct, your honor. justice rsh: and the example of someone who isn't immediately gointoie but may at some point in the future, that that would be acceptable? mr. turner: it goes back to the -faith medical standard, but, yes, if the doctor shld 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 a month from now? mr. turner: there is no imminency requirem this whole notion of delayed care is just not consistent with the idaho supreme court's reading of the statute and what the atute says. justice gorsuch: and the good it as i read the idaho supreme court opinion, that --

th controls? that's the end of it? mr. turner: absolutely, i justice gorsuch: all right. and then what do we do with emtala's definition of "individual" to includbo the woman and, as e atute says, the unborn child? mr. turner. it's -- you know, we're not saying, your honor, that emtala prohitabortions. so, for example, in california, stabilizing treatment y with what that state law allows its doctors to perrm but i think our point with the unborn child amendment in 1989 is that it would be a very rae thing for congress to expressly amend emtala t require care for unbn children, and 's not just when the child -- when the mother is exriencing active labor. the definition of "emergency medical ion" requires care when the child itself has an emergency medical condition ress of what's going on with the mother. and iwould be a strange thing for congress to have for the unborn child and

yet also be mandating termination of unborn children. justice gorsuch: thank y. chief justice roberts: justice kavanaugh? justice kavanaugh: i just want to focus on the actual dispute as it exists now, today, between the government's view of emtala and idaho law, because idaho law has changed since the time of the district cr's injunction both with the idaho supreme court and with a clarifying ge by the idaho legislature. you say in your reply brief, and so too the -- the moyle reply f says, that for each of the conditions identifd the solicitor gewhere, under their vi oemtala, an abortion must be available, you say in the reply brief that idaho law, in fact, lo 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. is there a cdition that you're aware of where e solicitor general says emtala requires that an abortion be available in an emergency circstce where idaho law, as currently stated, does not? mr. turner: , rtainly, the administration maintains that there is such conditions. the eshey identify in the affidavits -- justice kavanaugh: what is your -- what is your vi? mr. turner: and my view isha reference footnote 5 from the gray brief -- the mealealth condition situation. the administti says that's not on the table. that's not a scenario where abortion is the only stabilizing care ruid. ani'm not sure where that construct of only stabilizg care comes from because, under their view,'s the doctor's determination that controls, not this ios only requirement. but be that as it may, the american psychiatric association -- and so i'm taki geral prelogar up on her offer in footnote 5 that there are no profsial organizations that set abortion as a standard of care.

the american psychiatric association, in a 2023 position paper, says that abortions are imperative for mental health nditions. that sounds like a necessity to me. and i don't know how, if a woman presents at seven months pregnantn idaho emergency room and says, i'm experiencing severe depression from this egnancy, i'm having suicidal ideation from carrying this nancy forth, that that wouldn't under the administration's ading be the only stabilizing care. justice kavanaugh: so you think the ninth circuit panel, when said every circumstance described by the administration's declarations inlved life-threatening circumstances under which idaho law would allow an abortion, is what the ninth circuit panel said? mr. turner: we agree with that because e nditions identified in the affidavits we a conditions that would fit under the lifesaving exception, and that's lling because, you know, these doctors, when put under oath in an affidavit, couldnt come up with any of these harrowing circumstances.

they identified ones. but i think what the government doesn't want to talk about, again, ithmental health exception here. that is -- i just don't owow you can read their understanding -- justice kavanaugh: well, i'm just trying to figure t there really a -- other than the mental heah,hich we haven't had a lot of briefing about, is there anotr condition identified by the solicitor general where yothk idaho law would now a physician in his or her good-faith judgment to perform an emergency abortion? mr. turner: not in their affidavits. they maintain nonethesthat 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 the--hey say, but then, whene t down to the actual conditions that are listed, th examples -- and justice sotomayor was going throh me 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 i agree, and i think the injunction here is al -- justice kavanaugh: well, what's -- what does that me f what we're deciding here? mr. turner: well, wh imeans for idaho -- justice kavanaugh: if ido 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? mr. turne'll say two things. i meanthreal practical first response is that idaho's unde an injunction that includes an incredibly broad requirement that preempts state law -- justice kavanaugh: right. i -- i understan. 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, your honor, ion't know how this court can make the determination on whether there are any real-world conditions without first answering the sty interpretation question of what emtala'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 on your reply brief. you're the one who said it in your reply brief -- mr. turner: yeah. justicnaugh: -- that there's actually no -- no real daylight herinerms 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 understand why we have to address the stabg condition if what you say is that nobody has been able to identify a ct. and on the mental health thing, the sg says -- i just picked it up to check footnote 5- daho badly errs in asserting that construing emtala according to its terms would turn emergency rooms into f abortion enclaves by allowing pregnancy termination for mental health concerns." sohat's the only space that you can identify where and emtala would require one,ion and the government is saying no, that's not so, what's the conflict? mr. turner: well, uronor, i mean, of course, we think we win whether you nd no factual conflict and, therefore, the

injunction had to go away. justice barrett: but why? why e u here? i mean, you know, the government mr. turner: well, they sued us, your honor. jubarrett: well, hold on a second. you'reerbecause there's an injunction precluding you from enforcing your law. and if your law lly operate because emtala doesn't curb idaho'authority to enforce its law, what's -- mr. turner: ll, it can't under the injunction because the injunction says that idaho's law isreempted in an incredibly broad range of circumstances avoid -- stice barrett: as -- as it conflicts with emtala, i thought. mr. turner: it -- it -- it is much broader than that. it -- and isas based on the proffered injunction by the administration tavd an emergency medical condition, not in theof an emergency medical condition. so wt at means is idaho's lacan't even operate when a doctor determines that a condition might need tbe avoided that hasn't yet presented itself. that's far broader than the emergency medical condition and stabilization requirement under emtala because the stabilization requirement under emtala is only

triggered when there has been a termination that -- justice barrett: ok. we-- i would like to hear the solicitor general's response to that. but let me just ask you one other thing aboumental health consideration because i can -- i can understand's point that a mental health exception would be far broader than idaho lawad the potential to expand the availability of abortion far beyondidaho law permits. but the stabilization requirement only exists up until transfer, right, until transfer is possible? so it's harde to see how, that couldn't be stabilizedion, before needing to transfer, right? at that point, the idaho hospital could say: well, you're -- y're stable, you're not immediately going to be suicidal, we'll leave you in the ca you know, a parent or a paner who will then seek mr. turner: well, that flexible view of stabilization is very different than the government's very rigid view of stabilization, which is, if an emergency medical condition calls for artion, it's got to be provided right there and then '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 transfer pro kicks in if a hospital is unable to stabilize a condition. and so, if a patient presents at a hospital and that hospital has thbility, the availability to stabilize the condition, in the case of mental health, 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 described would t ed to receive stabilization in that circumstance and instead would be transferred to a psychiatric hospital or something and that wouldn't constituteumng under their reading. i just don't see ho comports with everything they've said about the rigidiew of stabilization that if a condition calls for it and a hospital can do it, it's got to be done there and then. justice barrett: does idaho have any kind of conscience exemption for dounder state law? mr. turner: it does. and there are federal conscience prons as well. and i think that is a key poin here, your honor. the administration told this

individual doctors are never required to perform an abortion from what i could tell, but that doesn't to hospitals. and so, in the case of catholic hospitals, and there are hundreds of them treating millio opatients every year, under the administration's reading, catholic hospitals who faithfully adhere to the ethical and religious directives areow required to perform abortions. justice barrett: is that because no federal conscience exemption applies? mr. turner: i don't know why they sayh's the line that they draw between individual doctors and religious initions because coats-snowe on its face seems to cover both. justice barrett: ok. thank you. chief justice roberts: justice jackson? justice jack'm really surprised to hear you say that idaho laits everything that the federal law requires. so i just -- i'trying to unde that because it seems that if that's the case, then why couldn't emergeom physicians in idaho just ior standard? and follow the federal

i mean, if -- if -he state is doing exactly what the -- what the federal law says is required,'s ok by idaho, then, fine, we set idaho aside. we do what the federal law says and we all go home. mr. turner: well, i mean, our re 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 representation on on behalf of idaho is that if a -- an emergency room physician in idaho follows emtala in terms of whabortion is required to stabilize a patient, they will omplying with idaho law such that there's going to be no prosecution and no probl? mr. turner: yes, because they have to comply with idaho lato comply with emtala. justice jackson: no, no. i'm asking you, if they -- if thply with emtala, will they necessarily have satisfied because that's what you seemed to say in response to e

justice barrett. response to so i just wanto make clear if that's the position of the state. mr. turner: emtala -- the scope of emta's stabilization requirement is necessarily determined by idaho law in this case. so -- ice jackson: no. you're saying, if theyolw idaho law, then they will be following emtala law. mr. turner: well, i -- justice jackson: i'd like for you to -- i'd like for you to -- mr. turner: -- i think it' both, your honor. justice jackson: no, it's not. i'd like for you to entertain the other poity. you seem to be saying every situation in which the uni states says here'a stabilization situation that the united states would say the person has to have an abortion, the physiciald say we're following emtala and abortion is required, i thought you said in response to justice kavanaugh, yeho law would also say that's a situation in which an ab is allowed. if that's the case, then it seems to me there is no daylight, there's no conflict, as you've sai b it's because

idaho law is in full compliance with what the federal law is saying we're getting it wrong, youre saying. this death thing, that's not what we really mean. what we mean is whenever it's necessary to stabilize ant who is experiencing deterioration, as federal law requires. mr. turner: no. i -- i -- i think i understand tht that you're making. and the best way that i can think of it, your honor, is that emtala's stabilization requirement requires medical judgo determine what is treatment, right?tabilizing medical judgment?ctor exercise well, his training, his experience, pereference to professional standards of care that are national, but -- justice jackson: how about -- how about -- mr. turner: -- necessarily state justice jackson: -- how about -- that's not just something youre sort of coming up with. i mean, as justice kagan sai the beginning, emtala tells the doctor how he's suppo decide it in this particular circum with reference to the medical stdas of care

concerning when a patient is deterig in an emergency condition situation. turner: yeah, emtala -- justice jackson: so, if t's e standard in emtala, are you representing that that is exactly what idahoying so that all the doctors need to do is follow emtala and they'll be fine under idaho law? mr. turner: well, of course, we're saying that idaho doctors necomply with emtala. question is how do doctors comply with emtala, and emtala -- justice jackson: let me ask you another question. let me-- i think i understand your point. you're sayaho is actually -- could actually be requiring more andederal law has to make them do what idaho says. mr. turner: well, and it's important that -- justice jackson: yeah. mr. turner: -- emtala itse codifies this presumption of a backdrop of state law. there are background principles here, and that's what -- stice jackson: all right. let me explore that with you for just a second. i -- i had t that this case was about preemption and that the entirety of our

preemption jurisprudence is the tion that the federal government in certain circumstances can makey pronouncements thaer from what the state may want or what anybody elseant, and the supremacy clause says that what the federal government says takes ent. ou've been saying over and over again idaho is, you kno a state and we have healthcare policy choices and we've made we've set a standard of care in this situation. l that's true. but the question is to what extent can teral government say: no, in this situation, our standard is g to apply? mr. tuand -- justice jackson: that's what t government is saying, and i don't understand how, cons with our preemption jurisprudence, you can be saying otherwise. mr. turner: yeah, if i can put a finer point on it. i don't think it's -- the question is neceary what can congress do but what did congress do here with emta and -- justice jackson: all right. so what dio here? mr. turner: yeah. it start opened the medicare act by saying the federal government shall not control the practice of and then, in emtala itself, it

says state laws ar preempted. and then, when it -- and then, when you get to -- justice jackson: state laws are eempted to the extent -- mr. turner: of a direct -- justckson: -- or are only preempted to the extent of a conflict. identifying a direct conflict. so why is preemption not working there? mr. turner: and -- and whether there's a direct conflict based on this court's longstanding precedenudes clear statement canons that -- we think we win on the te let me be very clear. the text to us is very clear, it's an easy on. but the government's got to come -- overcome a lot er hurdles, one being -- justice jackson: i hu saying two things, that we're -- there's not a conflict because everything we -- the federal ment requires, we allow, which the amici, physicians for rights, who have looked at idaho's law and ys it prevents a lot of things in circumstances in which the l government would require them, they disagree with you on the facts, but, anyway, you say no conflict because welly are doing exactly what -- or allowing exactly what the federal government allows. d u say no conflict because the federal government in this ation wanted the states to

be able to set the standards. and i guess i don'derstand how that's even conceivable, given this standard, given this statute -- mr. turner: yeah. justice jackson: -- that is coming iisplace state prerogatives. mr. turner: and if i can't convince you on the second, let me add a third. justicjason: yes, please. mrturner: and there the clear statement canon. so the spending au condition nature of this requires congress to speak clearly and unequivocally that it is imposing a abortion mandate. it -- that's not here in the statute. and, secondly, this court's presumption -- justice jackson: but doesn't at make abortion different? i mean, what do you mean? they say provide whatever is ney to stabilize. so you're saying they'd have to say provide whatever i 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 and look at the phrase "available" and whatans, the government -- the administration is saying, well, they're adding this tag that says consistent with state law. 're saying no, under the clear statement canon, it' presumption against preemption. and what the government ly do if it wanted to preempt this

law is to put a tag regardless of state law, and th 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 simple but profoun no one who com tan emergency room in need of urgent treatment should be deedecessary stabilizing care. this ce about how that guarantee applies to pregnant mein medical crisis. inome tragic cases, women suffer emergency complicatns that make continuing their pregnancy a grave thre t their lives or their health. a woman whose amniot s has ruptured prematurely, for example, needs iedte treatment to avoid a serious risk of feion that could cascade into sepsis and the risk of hysterectomy. a woman with severe preeclampsia caface a high risk of kidney failure that could require

life-long dialysis. in cases like these, where there is no other way to stabilize the woman's medical condition and prevent her from deteriorating, emtala's plain text requires that she be offered pregnancy terminatn the necessary treatment. d at's how this law has been understood and applied for decades. that usually poses no conflict wi state law. even states that have sharply restricted access to abortion after dobbs generallalw exceptions to safeguard the but idaho makes termination a felony punishable by years of imprisonment unless it' necessary to prevent the woman's death. i thk understood my friend today to acknowledge several tis that there is daylight between that standard and e necessary stabilizing treatment that emtalwod require. and the idaho supreme court recognized the same thing when it specificay ntrasted the "necessary to prevent death" exceioand said it was materially narrower than a prior idaho law that had a healt exception that tracked emtala. the situation on the ground in idaho is showing t dastating

consequences of that gap. today, doctors in idaho and the women in ihore in an impossible position. if a woman comes to an emergency ro fing a grave threat to her health, but she isn't ye facing death, doctors either have to delay treatmenan allow her condition to material -- to material deriorate, or they're airlifting her out of the state so she can g t emergency care that she needs. one spal system in idaho says that right now it's hang to transfer pregnant women in dical crisis out of the state about once every other week. that's untenae,nd emtala does not countenance it. none of petitioners' interpretations fit with the text, and sohehave tried to make this case be about the broader debate for access to abortion in cases of unwanted pregnancy. but that'not what this case is about at all. idaho's ban on abortion is enforceae virtually all of itapications, but in the narrow circumstances involving

grave medical emergencies, idaho cannot criminalize the essential 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? genel elogar: with respect torinal 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 that refle tes where the court has recognized the prmpve force of spending clause legislation, including in situations where the funding strictions apply to private parties, so that could include the coventry health case, for example. lead-deadwood is another example of this. but i'm not immediately recalling how that would apply in criminal law. of course, this court hasn't drawn those kinds of distinctions in recognizing the force of the supremacy clause. ste thomas: now the -- normally, when we -- a

preemption case, it's a regulated partwhis involved in the snd they use it as an affirmative defense, for example, in wyeth or something. on the -- in this case, you are bringing an action against t state, and the state's not regulated. are there other examples of these types of suits? general prelogarsu. i mean, there are numerous examples where the united states has sought to protect its sovereign interests in situations where a state has done what idaho has done here and interposed a law that conflicts. so i'd point to arizona versus united states as an example of that. united states versus washington. there are a number of cases where this court has recog that the federal government can protect its interests ts kind of preemptionctn. and, as i mentioned before, the court has a long line of cases recognizing that that preemption princie plies in the context of federal funding restrictions

that apply to private parties o. justice thomas: but even when the party that yo're bringing the action against is not a regulated part general prelogar: that's rrt, because what idaho has done here is directly interfered wi t ability of the regulated parties who have taken ese funds, federal funds with conditions attached, frobeg 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 hospitals sstantially investing in their hospital systems. and what the athas done is said you, through our operation of state law, are no longer permitted to complyitthis fundamental stabilization requirement in 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 yobout? genel elogar: certainly, i can imagine situations, for example, wre regulated party would assert a preptn defense and to say the state law itself is preempted to the

extent thaitrevents that party from being able to comply with federal law. but i'm not aware of any inciple or precedent in this court's case law to suggest th that's the only way for the vement to protect its sovereign interests. justice thomas: thats e normal way, though? general prelogar: i think at that's often the fact pattern of particular cases. justice alito: i don't understandowour argument about preemption here squares with the theory snding clause -- of congress's spending clause power. the theory is congress can tell a state or any other entity or person, look, here's some mey or other thing of value, and if you want to accept it, 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 party that has n aeed to accept this money?

general prelogar: there are no duties being imposed on idaho here. 's not required to provide emergency stabilizing treatment itself. the duties are -- are -- justice alito:el all right. general prelogar: -- applied to the hospital. justice alito: not -- not duties. hocayou impose restrictions on what idaho can criminalize simplyecse hospitals in idaho have chosen to participate in medicare? i don't understand how this squares with theho theory of the spending clause. general prelogar: lli think that it squares with this court's longinof precedents cited at -- justice alito: well geral prelogar: -- page 46 of our brief -- justice alito: welli i've -- i've looked at them. general prelogar--hat the court has recognized that -- juicalito: i've looked at those cases. i hav't found any square discussion of this particular issue. but i -- i'm interested in the theory. can u st explain how it works in theory? -- general prelogar: sur so spending clause legislation is federal law. it's passed by both houses of congress. it's signed by the president. it qualifies alaw within the meaning of the supremacy clause, an-- justice alito: absolutely. absolutely general prelogar: and -- and so i think the supremacy clause dictates the relevant principle here -- justice alito:o,ut what the law general prelogar: -- that in a situation where- justice alito: i'll let you fish. yes, go ahead. general prelogar: in a sitti where congress has enacted law,

it has full force and effect under the supremacy clause, and at state can't do is interpose its own law as a direct obsclto being able to fulfill the federal funding conditions. and this theory, justice alito -- justice alito: no, it's -- it's a geral prelogar: -- would mean no conditions -- justice alito: -- it's a question -- general prelogar: -- under medicare are enforceable. justice alito: -- it's n the're absolutely enforceable against the hospital that chooses to participate general prelogar: well, i guess the --hergument then would be that if a hospital is instead bound by t ste law and the state law gets to control, it would mean that hospitals couldn't participate in medicare atll. and that's not the argument that the state'mang here. what it wants is for its hospitals to be able to acce medicare funding but not have to face the restrictions thatre attached to those funds as an essential part of the bargain. and there is no precedent to support that outcome. justice alito: well, i -- -- just don't think -- i don't understand how -- how e eory works. but let me move on to something else. let -- i'm going to try to restate your general theory, and i want you to tell me if this is right. i think your argument is, if a woman goes to an emergcyoom and she has a condition that requiresn ortion in order to eliminate "'serious jeopardy" to her "hlt" the hospital must perform the abortion or transfer the woman to another hospital where that can be done. that a fair statement of your argument? general prelogar: iincludes not just serious jeopardy to her health b, viously, also serious dysfunction of her bodily -- justice alito: right. right. nel prelogar: -- organs or a serious impairment of a bodily

function. justice alito: right. general prelogar: and the other caveat i would make that it would -- it would require pregnctermination only in a circumstance where that's the on psible way to stabilize her and prevent that cascade o health consequences. justice alito: does this apply at any point in pregnancy? general prelogar: so the pregnancy complications that we have focused on generally occur in early pregnancy, often before the point of viability. there n complications that happen after viability, but there, the standard of care is to deliver the baby if you need the pregnancy to end because it's causing these severe health consequences for the mom. justice alito: well, wt it -- what if it occurs at a point where delivering the baby is not an option?

you' o of the third trimester, but it's really not an option toeler the baby. general prelogar: you said that you' in the -- justice alito: out of the first trimester. generaprogar: -- third trimester? justice alito: no. i'sorry. out of the first trimester. 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 risk to the m's health or life is for the pregnancy to end and terminatn the only option, then, yes, that's the required care that emtala has through its stabilization maat but, critically, in -- in many of the ces -- justice alito: ok. that -- that- neral prelogar: -- the very same pregnancy complication meanshe fetus can't survive regardless. justice it i -- i understand that. general prelogar: there's not going to be any way to sustain that pregnancy. justice alito: let me ask you squarely the question that was discussed during mr. turner's argument. does the term "health" in emtala mean just physical health, o does it also include mental health? general prelogar: there can be grave mental health emergencies, buemtala could never require pregnancy termination as the stabilizing care. justice alito:hy general prelogar: and here's why. it's cae that wouldn't do anything to address the underlying bra cmistry issue that's causing the -- the mental health emergency in the first place. this is t out mental health generally. this is about eaent by er doctors in an emergency room. and when a woman com iwith 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 in a position to give any informed consent. instead, the way you treat nt health emergency is to

address what's happening t brain. if you're having a psychotic episode, you administer antipsychotics. justice alito: well, i -- i really want a simple, clear-cut answer to th qstion so that going forward everybody will know what the federal governme's position is. does "health" mean only physical health, or ds also include mental health? general prelogar: with respe to what qualifies as an emergency medical condio 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 e accepted standard of practice to treat any mental health erncy. justice alito: does the term "'serious jear" in -- in (e)(11)( mn an immediate serious risk or may a risk of serious consequences at some future point suffice? general prelogar: the stanrd is defined in terms of whether you need immediate medical treatment. and so the relevant question is, in the abscef immediate medical treatment, are you going to have this serious jeopardy to your health, dysfunction of your

organs, will your bolyystems start shutting down, so it is pegged to the urgency of acute care in an ergcy room. justice alito: so it has to be immediate? general prelogar: the -- the relevant standard under th statute is phrased in terms of whether these consequenc wl occur without immediate treatment, yes. so it's focud the interaction beeehaving some kind of urgent health crisis that takes you to an emergency room in e rst place and then how proximate these -- these coequences are likely to be. justice alito: well, there are two ffent things there, whether the person is -- whether the woman is in immediate jeopardy or whether thpeon -- the woman needs immedia care in order to eliminate jeopardy at a lar int. so i understand your answer to be tt e woman need not be in imdiate jeopardy, but if she doesn't get care right away, jear at some future point may suffice? general prelogar: so the statutory standard itsf focused on immediate health risks.

it's lookinathe possibility that if the woman doesn't get treatment th a there, what will happen,hawill reasonably be expected to occur is that her organs couldta shutting down or she might lose her fertily have other serious health consequences. it is focused on this temporal linketen the immediate need for treatment, which is i think reflective of the fact that ngress was narrowly focused on this emergency acute medal situation. justice alito: do the terms "impairment to bodilfutions" or "'serious dysfunction of any bodily organ or part" refer only to permanent iaient or dysfunction? general prelogar: i think -- justice alito: or do -- does it also refer to temporary imirnt or dysfunction? general prelogar: i think it can also refer to temporary impairment, but i'm not su that it's easy to parse e o. for example, a lot of times a pregnant woman in distress, she might start suffering liver damage or kidney malfunction and you don't know ex ante whether that'going to be permanent or not. the instruction th cgress gave in emtala is you need to stile to guard against those very serious health risks. justice gorsuch: general, i'd -- i'd like to -- if you -- yeah, just understand kind of the scope of your arment here on the supremacy clause a it operates in your mind, putting aside the -- this case.

could the federal government condition the receipt of funds onospitals that they comply with medical ethics rules provided f bthe 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 imagininth this is regulatory action or that congress has passed a state creating kind of a federal malpractice regime? justice gorsuch: you call it. general prelogar: i mean, i think i have a broad view of congress'thority to enact statut, d 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 clause. this is all spending clause. general prelogar: yeah. so -- so i think that very likelyoness could make those kinds of judgments and attach conditions to the receipt of federal funds. and, you know, in medicare, there are suial conditions. justice gorsuch: even if it covers all hospitals in the

state and effectively transforms the regulation of medicine into a federal function -- general prelogar: you know, there might be a.-- justice gorsuch: -- historical? general prelogar: -- at which this court thinks that it's really encroaching on the ate's prerogatives in ways that are inconsistent with our constitutional structure, but i don't think -- justice gorsuch: you don't -- genalrelogar: -- we're anywhere close to that -- justice gorsuch: -- you don't see -- general prelogar: -- in this case. justice gorsuch: but do you see y bounds just in principle? general prelogar: i think the bounds, you know, would have to come from this court's se law concerning federalism

principles. the court has said in cases like gonzales versus oregon that, of course, the federal government has authitto comprehensively regulate on health and safety, including with respect to medical care. and so i don't think that there's any principle of exclusive governance of this area by the state. but, obviously, i'm sure y could construct hypotheticals that really -- justice gorsu: all right. ok. general prelogar: sm to be the federal government entirely taking over a state function and maybe that would be subject to a different principle. justice gorsuch: yeah. and emtala and -- and medicare allow the federal government to enforce the emtala dictate through civil monetary penalties? general prelog: at's correct, yes. justice gorsuc a also, you can terminate the medicare agreemen ia hospital violates emtala in your view? geraprelogar: yes. generally, the hospital is given the oppouny to come into compliance and to develop a plan to ensure thathe won't be future emtala violations. it wldbviously be an extreme sanction to -- to terminate meca funding, but that is a possibility. justicgouch: and there's also a private right of action r emtala violations that it have the possibility of equitable relief as well? general prelogar: s. certainly, monetary relief and -- and possibly equitable relief as well. justice gorsuch: in -- in this case, you -- you -- you brought an equitable causef tion. you didn't cite any statute to enforce emtala. and one of the rules in equity tradiolly at least is that

you don't get an equitable relief if there's an adequate reme alaw. and as we just discussed, there's a pretty reticulat statute here. seminole tribe says, when you ha a reticulated statute and lots of remedial options, you don't get equitable relief. thoughts? neral prelogar: so let me say at the outset that the ute states has long been recognized to have an action in equity,n 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 things like jtice gorsuch: its sovereign -- its proprietary interests? you mentioned washington and you mentioned -- general prega arizona versus -- justice gorsuch: -- arizona. general prelogar: -- united states -- justice gorsuc arizona was an -- general prelogar: -- is another example of that. justice gorsuch: arizona -- arizona was -- just sorry to interrupt, but arizona was an immigration case and -- genel prelogar: right. justice gorsuch: -- the rd, 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 te ose points. and equity is all about propriarinterests and things like that. do we havehahere?

general prelogar: the -- well, i think that the court -- it's not -- ianto make sure to make clear that there are a long line of caseshastand for this principle, including cases that ha 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, att reflects the history and tradition of this nationn cognizing that it's entirely appropriate for the united states to seek to protect its interests in this manner. and t say, justice gorsuch -- justice gorsuch: what do you -- genalrelogar: -- this is a really important issue to the uned states. it wasn't pressed belo it wasn't passed upon. justice gorsuch: i'm just trying -- general prelogar: we haven't briefed it at all. justice gorsuch: i'm trying to -- genalrelogar: it's not jurisdictional. justice gorsuch: i'm just trying tondstand where it comes fr. what is the proprietary interest here? general prelogar: it comes from -- justice gorsuch: it seems to me it's -- it'your money and how it's being spent, and congress has given you lots of tools. general prelogar: i think it

also comes from the recognition under obstacle preemption principles that there e important functions to be served by having the medicare program in place. and idaho has directly interfered with the ability of hospitals to accept these federal funds when they std willing and able to comply with emtala's mandates and fulll congress's desire hertoake sure that no matter whe u 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: unl, your friend on the other side said that your position would require religiously affiliated hospitals with emergency rooms to rfm abortions. was he right? general prelogar: no. my friend was wrong. there are federacocience protections that apply at the entity levelo spitals as well. the key provisions are in the weldon ameme and also coats-snowe, although that

dendon the residency program of a particular hospital. now hhs said in a 2008 making on conscience protections that it had never come across a hospital that had a blanket objection to providing life-preserving d health-preserving pregnancy termination care, but if a hospital h tt kind of objection and hhs recently informed me they still have not come acrs at hospital, that would be honored vis-a-vis hhs' enforcement ability. chf stice roberts: you said that applies at the entity level. can individual doctors in the emgency room -- do they have a conscience exemption? general prog: oh, yes. yes. they're protected under the church amendments principally. and our position is that emtala does not override either set of conscience proteio. so, if an individual doctor has a conscience objection to providing pregnancy termination, emtala itself imposes obligations at the entity level, and the hospital should ha plans in place to honor the individual doctor's nscience objection while ensuring appropriate stfi for emergency care. chief justice rort well, does that -- does that mean that there must be somebody in the emergency room that can provide an aboio what if -- what if there are two cts, three doctors, and they all have a conscience exemptn? general prelogar: no. in that circumstance, emtala

could not override tse individual doctors' conscience protections, but my understanding is that as a matter of best practice, because hospitals want to be able provide emergency care, they do thin le ask doctors to articulate their objections in advance so that that can be taken into accountn king staffing decisions and wh's on call. hospitals have a lotf ans in place -- chief justice roberts: are -- are you saying -- general prelogar: -- for these kinds of contingeie chief justice roberts: yeah. ar--re you saying that there must be somebody available and on calin- in a hospital of that sort? general prelogar: the conditions of participation for medicare require hospitals to be appropriately staffed to provide emergency trtmt. now, in a situation where a hospital doesn't -- hn't done that and it doesn't have anyone on hanwhcan provide care, you know, maybe all of the doctors called in sick that day

and there's just literally no one in the emergency room, or in this case, if everyone had a nscience objection, then the hospital would not be able to provide the care. but there are conditions of partipion that are meant to ensure that there is good governance of hospitals and organization to accoun--hief justice roberts: when you 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 circumstance, i inthey would likely be out of compliance with the conditions of participation that require them to be appropriately staffed. but, if the question is could you force an individual doctor to step in then over a ence objection, the answer is no. and i want to be really clear about that. chieice roberts: i know, but the question -- general prelogar: we don't understand emtadisplace it. chief justice roberts: excuse me. the question is whether or not must have available someone who can comply the procedures re by emtala. and what would be the consequence if they d't? would it be eventual termination of their participationn medicare? general prelogar: that't. so, if a hospital was continually disobenghe requirement to have in place sufficient personnel to run their emergency room, then i imagine that hhs would, through enforcemtion, work with that hospital to try to bring it into compliance. and if the hospital ultimately is jt aving itself in a position where it can never provide care, then it would terminate the medicare funding reent. justice gorsuch: i thought -- justice barrett: general - justice gorsuch: -- you just said a minute ago -- i'm sorry. justice barrett: oh, no, go ead. justice gorsuch: i thought you -- i just want to clarify is

colloquy. i thought you said mute ago, though, if the hospital had a conscience objection a therefore didn't provide certain care, thathawouldn't render it out of compliance. whicist? general prelogar: that's correct. juicgorsuch: ok. all right. general prelogar: so the hospital could assert a conscience objection -- ste gorsuch: that's all. general prelogar: -- and emtala would not override that. stice barrett: my question - i have a question about the de amendment. so i gather from the briefing that there might be some situations in which emta wld require an abortion, but the hyde amendment wouldn't permit federal funds to be us tpay for it. and you said in your brief that emtala requires in other circumstances as well stabilizg eatment to be given that federal funds don't cover. can you give aexple of that? and am i right about the hyde amendment? and then can you give an example of tha general prelogar: yes. sooure right about both things. it is common under emtala that hospitals are going to have to provide care where there's no federal funding available. and i'll give you an example of a medicare patient who goes in and his emergency medical condition means nds a particular drug that's not coreby medicare benefits. still, the hospital has to provide him thtabilizing treatment and give him that medication, even though the federal fuinisn't going to pay for it. and that also pls to people who are uninsured, who aren't covered by medarin the first instance. the -- the whole point of emtala was it doesn't matter your circumstances, idon't matter whether you can pay or not, it

doesn't matt t particulars of your situation, this is a guarantee. you can get stiling treatment. i want to say, though, that i don't think there's any inconsistey tween the lines congress drew in emtala and hyde and congress itself has cognized that these statutes address discrete issues. 'm thinking here of the provision in the affordable care act th w exclusively about abortion, and there, congress said nothing in the aca displaces hyde and the other federal funding restrictions on abortion, but nothing in the aca displaces emtala's requt to stabilize. and that shows two things. hows first that congress recognized that stabilizing care can sometimes be pre termination. and i think it also showed congress's ition that these statutes addressed their own distinct spheres. and onl point on hyde, justice barrett. my frin't drawing a line based on hyde either because his point is, even if a woman is on brink of death and she goes to an emergency room and there are federal funds available under hyde to treat her, still, hospitals have no obligation under emtala to provide at care. justice barrett: so what about the colloquy i was having with your friend about what stabilintreatment entails -- let's imagine a situation in

which a woman is, i don't know, 10 weeks, and is told thatf you carry this pregnancy to term, it could have, you know, consequences for your health, but you just would need to abort before, like, say, 15 weeks, something like that. so there's not an immediacy, like -- so she's stable wn e leaves the hospital, but in ido, there's no place else that she can go at least uil she's 15 weeks. what is the federal gornnt's position then? general prelogar: i think, if i'm understanding the hypothetical correctly, that she likely wouldn'have an emergency medical condition in thfit place because the definition of having an emergency medical condition is that, without immediate treatment, you asonably -- you will reasonably be expected e serious dysfunction of your organs or serious impairmentur bodily functions. and so, in that situation where a woman is somewhat high risk, you knowe she -- she has certain complications where doctors can say's some danger with continuing this egncy, i don't think that that creates the kind of emergency medical condition that emtala is aimed at. last question, and this is about the spending clause so it does seem odd -- and i think kiwhat some of the questions are getting at -- it does seem odd that through a side agreentetween a private entity and the federal government, the privatenty can get out of state law, right? so, in a administration,

would it be possible then in reliance on the spending power for congress to say, you any hospital that takes these funds cannot perform abortions or any hospital -- despite state law requiring -- a state nstitutional amendment requiring abortion available, is that possible or, you know, withenr reassignment surgery? i mean, you can imagine it kind of going bk d forth through spending clause litigation in ys that would be unusual. general prelogar: yes, i think congssas broad power under the spending clause to attach conditions. now it doesn't mean that it's wholly unlimited. obviously, congress would be having to act pursuant to an enumerated power, it would have to comply with other constituon limits, and so the law would have to be 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 gender reassignmt rgery or abortion or those sorts of things? general prelogar: oh, no. i just mnthat it would have to be valid spending. justice barrett: the spending clause? geraprelogar: the spending clause. justice barrt:he spending

clause. general prelogar: -- itself would be enough. justice barrett: ok. ok. general prelogar: yes. so we think justice gorsuch: yeah. so -geral 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 essentially rela the practice of medicine of the states through the spending clause, e swer, i think, is yes, congress could prohibit gender reassignment surgeries across the nation, it could ban abtion across the nation, through the use of its spendin clause authority, right? general prelogar: core does have broad authority under the spending clause. and, yes, if it satisfies the conditions that e ending clause themself -- itself requires, then i think that that would be videgislation. justice gorsuch: how -- general prelogar: and the court has in many contexts recognized -- justice gorsuch: how do we -- general prelogar: t spending clause legislation

preempts. so to justice --usce gorsuch: so the -- the answer is yes? ok. so how do we reconcile that wi the statement in 1395 that thing in this subchapter allows a federal officer to exercise any ctr over the practice of medicine? general prelogar: so, at the outset, i think, if congress itself is doing it, then that provision is inapplicable by its own terms. that's looking at the -- justice gorsuch: you don't think it informs our view and understandinofhe statute in any way? general prelogar: well, i think, in the event of some kind of direct cflt, you know, looking at emtala in particular, it's the later in time enacted state, and it's clearly more specific, so it would control. this court itself has rejected the idea that there would be that kindf nflict. and i'inking of the cms vaccine case where the litigants relied on xact same provision of the medicare act,

sect95, and this court said no, that can't bear the weight that those litigants could place on it or it would ll into question all of the conditions of participation in re. justice gorsuch: do you agree that our clear statement re with respect to spending clause legislation, our clear stateme rule with respect to federalism are in play here? neral prelogar: i think that here, congress has spoken y with respect to what providers -- justice gorsuch: oh, i - general prelogar: -- are supposed to do. e gorsuch: that's not the question. do you think those ptions apply? forget about whether you can satisfy them. general prelogar: the requirement of cleice under spending clause legislation, yes, i that that does apply, and providers have always understood their obligations under emtala. justice gorsuch: ok. justice n: 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'identified a circumstance in which something that emtala requires idaho wouldn't allow. and i -- i didn't get a chance to ask him, t took -- i took him to sort of mean that the way thatda's statute operates, it basically allows for a doctor say, well, in my view, you know, this health-threeng

circumstance could eventually lead to death, and so i'm going to do it. so, to thextt that doctors are still able to do that, i guess, he's saying there's no preemp but is it true that there really i't in operation a difference between the two -- the emtal and what idaho has requid here? general prelogar: no. that is gravely mistaken on three levels. it's inconsistent with the actu tt of the idaho law. it's inconsistent with medical realy. and it's inconsistent with what's happening on the gun and this is a really important point, sleme try to unpack this. on the text itself, a's law only allows termination if it's necessy prevent death. and that is textually very narrow compared tohaemtala requires with the category of ha tbegin with. in idaho, doctors have to shut their eyes to everhi except death, whereas, under emtala, you're supposed toe inking about things like, is she about to lose her fertility? is her uterus gointoecome incredibly scarred because of the bleeding? is she about to undergo the possibility of kidney failure? so i think that that is on critical distinction. the other critical textual stction is the idea of necessity. under idaho law, you have to conclude that death will cessarily result, which is also materially different, and e idaho supreme court specifically recognized it. second, wi rpect to the there are numerous conditions that we are worried about where doctor's immediate concern is not death.

that's a far more remote possibility. they' tnking about the health circumstances that emtala guards against. and let me give you two examples. the first is pprom, premature rupture of the membranes. have declarations at 594 that explain this in detail and also ata 615 to 617. what the doctors explainedhe -- this is dr. fleischer and dr. cooper -- aoman comes in with pprom, her sac is ruptured. there's nohae the fetus is going to be able to survive, but at that point, she doesn't have active signs of infection, and so, until she deteriorates, you can't think she's close to death. what you're worried about is she will bominfected. shmit develop sepsis. she might have these dramatic consequences for her future, but it's not about death. i think that is one example where you can't do it. and then, finally, just the actual practice on the ground, women in idaho today are not getting treatment. they are getting airlifted out of tte to salt lake city and to neighboring states where there are health exceptions and there are laws because the docts e facing mandatory minimum two years in prison, lo of their license, criminal prosecution. the doctors can't provide the care because until they can conclude that a prosecor looking over their shoulder won't second thamaybe it wasn't really necessary to prevent death. chief 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 this case, and one potentially very important phrase in emtala has rd been mentioned. maybe it hasn't even been mentioned atll and that is emtala's reference to the woman's nbn child." isn't that an odd phrase to put in a statute that imposes a mandate to perfo artions? have you ever seen an abortion stute that uses the phrase "unborn child"? general prelogar: it's not an d phrase when you look at what congress was doing i19. there were well-publicized cases where women were experncg conditions, their own health and life were not in danger, but the fetus was in grave distress and hospitals weren't treating them. what congress did -- justice alito: well, have you se - general prelogar: -- is that it -- justice alito: -- have 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 won that they could get the same duties to screen and stabilize when they have a condition that'thatening the health and well-being of the

unborn child. but what it doesn't suggest is that conessimultaneously displaced the independent preexisting obligation to treat a woman who herself is facing grave life a hlth consequences. justice alito: well, let's walk through 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 a hospital witanemergency medical condition" -- that's the phrase -- the hospital must eithertalize the condition or, under some circumstances, transfer the -- the woman to another facility. so we have this phrase, "emergency medicalontion," in that provision. and then, under (e1)the term "emergency medical condition" is defined to include a condition that places the healthf e woman's unborn child in serious jeopardy. so, in that situation, the

hospital must stabilize the threato e unborn child. and it seems that the plain meaning is that e spital must try to eliminate any imdie threat to the child, but performing an abortion is antithetalo that duty. general prelogar: but, in a ciumstance -- justice alito: now -- and you -- you go -- you go so far as to say that the statutislear in your favor. i -- i don't know how you can say that in light of the -- of those provisions that i just read to you. general prelogar: the statute did nothing to displacth woman herself aindividual with an emgey medical condition when her life is in danger, when her health is in danger. that stabilization obligation equally runs to her and ke clear that the hospital has to give her necessary sbizing treatment. and in many of the cases you're thinking about, there is no possible way to -- to stabilize the unborn child because the fes sufficiently before viability that it's inevitable that t pgnancy is going to be lost, but idaho would deny

men treatment in that circumstance -- justice alito: doesn't -- generalregar: -- even though it's senseless. justice alito: doesn't what i've re to you show that the statute imposes on the hospital a dutyo e woman certainly and also a duty to the child? and it doesn'te the hospital how it is to adjudicate conflicts betweethe interests and it leaves that to state law. now maybe a lot -- most of your argument today has been dedicated to the proposition at the idaho law is a bad law, and that may well be the case. but what you're asking us to do is tcotrue this statute that was enacted back during the reagan administration and signed by president rgan to mean that there's an obligation under certain circstces to perform an abortion even if doing that is a vlaon of state law. general prelogar: if congress had wanted to displace protections for pregnant wom who are in danger of losing their own lives or their healt then it could have redefined the statute so that the fetus itself is an individual with an ergency medical condition. but that's not how congress structured this.

instea iput the protection in to expand protection for the pregnant woman. the duties still run to her. and in a situation where her own fe and health is gravely endangered, then, in tha situation, emtala is clear. it says the hoit has to offer her stabilizing treatment. justice alito: the -- the only -- general prelogar: and she doesn't have to accept it. these are tragic circumstances. and many women want to do whatever they can to save that pregnancy. but the state otects her and gives her that choice. juicalito: the only way you try to get out of the statutor interpretation that i just posited is by focusi othe term "individual." and you say, a-ha, in the dictionary act, "individual"s fined to exclude an unborn chd a fetus. that's the only way you can try to get out of at've just outlined. and isn't it truth under the dictionary -- that dictionary act definionapply only if they are not inconsistent with the atory text?

and when you have a text that, certainly, you wouldn'diute the fact that the hospital has a duty to the unborn child where the woman wants to -- wants to have the pregnan gto term, it indisputay protects the interests of the unborn child. so it's inconsistent with the definition in the -- in the dictionary act. general prelogar: no, not at all. e ty runs to the individual with the emergency medical condition. the statute makes clear a's the pregnant woman. and, of course, core wanted to be able to protect her in situations where s's suffering some kind of emergency and her own al isn't at risk, but the fetus might die. that includes mm things like a prolapse of the umbilical cord into theerx where the fetus is in grave distress, but the woman is not at all affected. hospitals otherwise wouldn't have an obligation to treat her, and ngss wanted to fix that. but to suggest that in doing so ngss suggested that the woman herself isn'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 -- she doesn'deserve stabilization. general prelogar: well, the -- 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't the predicate. it wasn'-- general prelogar: -- can declare that she cannot get the stabilizing treatment

even if she's about to die. ats their theory of this case and this statute, and it's wrong. chief justice roberts: justice sotomayor? justice sotomaeneral, this -- this lack of conflict which urpposing counsel colleague says doesn't exist, you mentiod situation where it does. why don't you succinctly state what you -- well, they adm there's daylight. tell us exactly how u fine where the daylight exists. general prelogar: thight, as i see it, exists on two dimensions. eyhink that doctors can only provide stabilizing care when the woman is facing death. and we think, no, you can take into account things like kne failure, the risk of a seizure, and life-long neurological impacts based on that. justice sotomayor: well, they -- they said the rentecision of the oregon court says you don't need death to be imminent or immediate, i think, is the word they used if i'm not wrong. general prelogar: so what the idaho supreme court said in that

decision is that there's no partul level of imminency and no certain% chance quement. but what the court couldn't do is turn away from thlauage requiring the type of harm to exclusively be death. and also, the inherentonpt of necessity requiring some degree of mince, it's true that it's a subjective standard under ahlaw, and the court made that clear, but what the idaho supreme court also said is prosecutors arfr to come in and have other medical experts second-guess doctors' decisions by sayg ybe you didn't subjectively think she really needed it as necessary to prevent death because, look, her -- her sac had ruptured, but she wasn't yet infeed and that's exactly the kind of situation that leads to women being drivenutf state, dumped on neighboring states by idaho, and criminalinghe care, the seial care that they need. justice somayor: thank you. chief justice roberts: justice kagan? justice kagan: yeah, if you could just talk a little bit about that because, as i

understood it, for example, i read recently that the hospital that has the greatest emergency room services in idaho has just in the few months that this has beenn ace had to airlift six pregnant women to neighboring states, whereas, in e ior 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 happening? nel prelogar: i think that threason this is happening is because those doctors can look at the text of the statute itself, they can look at the idaho supremcot's decision, which made clear, very clear, that ts s a departure from prior idaho laws that tracked emtala. anthey can recognize that their livelihood is on the line, their medical license, their ability to practice dine, their freedom ifhehave to go to jail and serve one of these minimum two-year sentences of imprisonntand they simply cannot provide the care, even consistent with their subjective

medical judgment, because as a matt -matter of medical reality, for many of these conditions, it'not yet putting a woman at the brink of death or nessy to prevent her death, yet they know that the standard of care is to provide her with teination because she is just going to get worse and wor a worse if they wait it out. and the other impoanpoint about this, and i think it goes back to this dual stabizion idea, is that, tragically, in many of these cases, the pregnancy is lost. there's not gog to be any way to save that fetus because a woman who has pprom at 17 weeks, there is no medical way to sta the pregnancy to give the fetus a chance. so in that situation, what idaho is doing is waiting for women to wait and deteriorate and suffe the lifelong health consequences with no posslepside for the fetus. it just stacks tragedy un tragedy. justice kagan: and it -- it -- it can't be the appropriate -- you know, it's like -- it's become -- transfer is the appropriate standardf re in idaho. but it can't be t rht standard of care to force somebo oo a helicopter. general prelogar: and it's entirely incsient with what congress was trying to do in the

statute. you know, onofhe primary motivators here was to prevent patient dumping. thidea was we don't want people to have to go somewhere else to get their care. you go to the first emergency room in your state, and they have to treat you and stabilize you. but this effectively allows states to take any particula treatment they don't want their spitals to provide and dump those patients out of ste. and you can imagine what would happen if erstate started to take this approach. justice kagan: a question on the spending clause questions that you've been ke i mean, what would -- if you accepted some ofhese theories, what -- what would the consequences of somethinli that be that we would have to worry abt? general prelogar: i think that it would call into question any number of federal spending statutes that provide fundto private parties, and the a a bunch of them. you know, there's the medicare system itself, whi iof course a major federal spending program. there are funds provided under title vi, under title ix, a lot of federal statutes out there that give funds to private parties and insist on conditions of cplnce with the federal funding restrictions. .

and if the court were to suddenly say that can't preempt contrary state law, then i think that it would seriously interfere with the ability of the federal government to get its benefit of the bargain in thosspding programs. justice kagan: and you mentioned before that this question has never been a part of this se general prelogar: that's right. they did not make these arguments in the lower court. they briefly referred to the spending clause, but i don't understand them to he essed this argument specifically. and so i think that -- theow courts did not address it. i think the stct court said in a footnote, they briefly refer to it in a footnote of their brief, and it's essentially waived. justice kagan: thank you. chiejustice roberts: justice -- justice kavanaugh? justice kavanaugh: you've touched on what's happening on the ground, and that's an answer to the question of what's happening. but idaho is representing -- and i just want to get your answer on this -- that, as i count it, nine conditions that have been identified by the governnt where emtala would require that an abortion be available, an abortion is availablunr idaho law. and that'he reply brief. now, are there other conditions? -- you've ruled out mental health.

arthe other conditions you would identify, or are you just saying that that'not really happening on the ground? i think that's part o answer, but i just want to get a fuller answer on that. general prelog: certainly isn't happening on the ground. these are the conditions that we're worried about. and i think the problem with my friend's thryhat idaho law would permit it is that you just can't squa iwith the text of the statute. you owthe -- the -- justice kavanaugh: what if there were general prelogar: -- the state of idaho -- justice kavanah: i'm sorry -- keep going. general prelogar: well, i just wanted to say they're not the ulmate authority on what the idaho law means. that's the idaho supreme court, crse. and it has addressed this issue in the planned parenthooca.

and i think it'really significant that, in planned parenthood, the idaho supreme court prsly contrasted this statute with other statutes that contain health-preserving measures and recognized this was -- a total departure from that. the legislature wanted tfos a "necessary to prevent death"on exception. so i think that -- that that essentially meanth the supreme court of idaho has already touched on this issue, and it's wonder, then, that doctors who are facing these ndof pregnancy complications, where in their medical judgment it's not necessarily to prevent death but the woman is going to suffer serious health consequencesthr hands are care under the idaho law.de that justice kavanaugh: if the -- wha's on page 8 and 9 of the reply brief were idaho law, would the a problem still? general prelogar: so if we had an authoritavedaho supreme court decision that said idaho law alwsor termination in the circumstances where emtala would requiryes, of course. then the conflict goes away. juickavanaugh: well -- general prelogar: but i can' imagine the court would say that because, of course, here -- justice kavanaugh: that's not quite what 8 and 9 say, bui i take your point on that. separate question, different category. i think one of the themes on the other side is ths law passed in 1986 was a very important w dressing a very important problem; namely, the problem where spals were

turning away poor and uninsured patients who came inor emergency care. and the id w that can't happen. we can't allow hospitals in thi country to turn away poor and uninsured people in an emergencies. but their theme is that the law was not designed contextually to deal with specific -- with abortion or othespific kinds of care. and so they make a textual argumentbui think they also make a broader contextual arment about the whole idea of what was going on in 1986. and i want to make sure -- i don't think a's really come up too much. i want to make sure yoreond to that. general prelogar: i appreciate ving the chance to address that. so athoutset, i don't think they can square that theory with thte of the statute, which says, in no uncertain terms, here is the fundamental guarantee. if you have an emergencyedal condition and you go to an er in this country, they havto stabilize you. they have to give u ch treatment as may be necessary within reasonable medical probability eure that you don't deteriorate. and, yescoress did not provide a reticulated list of all possib ergency medical conditions and all possible

treatments, but it was very clear that congress set a baseline national standard of care to ensure tha nmatter where you live in this country, you can't be declined service and the -- the urgent urgent needofour medical condition addressed. and, you kno iwould be no different if the state had come ouandecided to ban epinephrine. that's the singular way to ea anaphylaxis, a severe allergic acon. that would violate the statu, anwe would be up here making the exactly same arguments, because congress didn't want that. if you have anaphylaxis and you go to an er anywhe aund this country, th're going to give yoepephrine. and congress mandated that. and i don't see any way to try to draw lines around to exclude pregnancy complications in the circumstances where the only way to address the woman's condition and prevent material deterioration is for the

pregnancy to end. justice kavanaugh: thank you. ief justice roberts: justice barrett? justice barrett: so, genali -- i understand the primary difference bwe emtala and the idaho statute to be this health, that -- th iho focuses on the risk of life, but the federal government says that emtala -- llemtala says that the health is -- am i right, i's health and life? general prelogar: that's -- that's the principal difference, but i think it's also t difference between necessary to prevent death versus theealth concerns would be reasonably expected to occur. so i think that that is a standard that budsn a little more space for doctors to take action. justice barrett: got it. is the federal government aware of any state, other than idaho, that has a law that does not take health into account? genel elogar: there are six other states that have severe abortionesictions without a health exception. so tnk that those are the primary category of states we're concerned about here. justice barrett: thank you. general prelogar: i should -- i should make clear that there are me pending judicial challenges in those states, and so their laws are not always enforceable or in effect right n. justice barrett: besides texas, has the federal government -- hathfederal government brought suits similar to the o brought in idaho and texas in any of these oth stes? general prelogar: to be clear, texas was not our -- jti

barrett: right. ok. generaprogar: -- affirmative litigation. they sued us. but we have not brought affirmative litigation in other states. and i thini's -- this case has been on a course and idaho's law was particularly severe because t point at which we sued it seemed to cover ectopic pregnancy, and the state conceded that. noy have modified the law to exclude that, but it was one of the most pressing concerns because of that. justice barrett: thank you. chief justice roberts: jus jackson? justice jackson: general, petitioner relies pretvily on clear statement rule princi and i wonder whether you might coent on my thought that those principles actually cut against them in this case. as you said, congress set a baseline natioandard of care. it has said, in no uncertain terms, that the hospital must provide stabilizing care to people experiencing emergency medical conditions. there was no, as you've sai you know, particular conditions -- or particular treatments about, carved out, et cetera. so if a clear statement is required, wouldn'it be the exempting abortion?ption-

justice alito has talked about some of themptions for unborn child. none of them we'd like an exemption. nothing that is this clear nation sndard of care. >> i think congress was clearly requiring stabilization. it wasn't exempting particular conditions or particular types of treatment. th court has said there is no canon of duluth -- dona rose. en you have a provision like that, the fact that you don't have specific enumeration of one of i alications does not mean you should read in some side of -- some kind of implicit ption. wh i think we would need to e is a clear statement that ress meant for you to not provide abortions. >> i think important to

recognize that every relevant actor ha understood it this way from the begni. then the agency's position all along -- we not adopting a new position. providers venderstood it. they hav always provided life-sustaining and healthy stating pregnancy termination consistent with and tyler. congress recognized it in the affordable care act. and i think there isny argument to be made that people understood what congress is doing the statute. >> thank you, unl. quick thank you, your hor. and tell it takes state law practandards as they find them. as justice gorsuch noted, that is what section 1395 said. in the vaccine mandate case that referenced, that is what the

general's office told this court when is at 1395 does not require does not allow federal officials to dictate particular treatments for particular cases. do here with -hey are trying to it is -- it is confirmed by subdivision f. anything that could codify this, to justice jackson'colloquy at the end, that is the point. you do presume that state law continue to operate alongside impala. you don't presume opposite. it is supported by the that is the rosetta stone of intel enforcement. tells doctors, it tells cms enforcement agents on the available by referencing what is in t scope of that doctor's license. that is exactly what we are saying. it is also specicay directed

-- it requires hospitals comply with state law. that directs hospitals to acquire hospitals staff. they totally lack any case history that would support the this always was understood to be the case will you think we would find those 115,000 instances. le instance where state law was overridden. and finally, the text. the text qualifies and tel us steve drew -- station requirement. we know they can perform open heart surgery and we know debtors can draw blood. it is not just a plainante devoid of reference to state law. we know the word available even inommon usage incorporates state law.

you are just the other day that when considering whether this is available for homelesseoe, it iin physical and legal sense. there is a physical question and a legal question. opioids are available in the hospital. they are on thshf, physically there. there is a legalueion that comes into play there. e me with abortions. inesnse to the chief justice qution, the general said both hospitals and doctors are exempt from and tell us suppo it abortion mandate. we are relieved hr that. i think it highlights the utter incoisncy of the administration's meeting. if the establishing requirement is done on them not to override nscious protections, and it cannot be so specific and include a requirenthat 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 administra's position ultimately is untethered from any limiting principle. but i inwe heard that. there is no way to limit this to abortion. there is no way to limit it to idaho. they are 22 states with abortion law on the books. this isn't going to end with idaho or the s states because all the steshat have abortion rions define the health and the emergency ption narrower than m tele does. this question will come up in state after state after state. it is not limitetohysical health. i know they say there is no stance in which a medical condition require stabilizatn thin abortion. now he ist fighting with the american psychiatric association.

that is not consistent. it isn't limited to an tele. you will point the major spending becau ilications that are at play here. we recognize this is usually concerng if the federal government can pay private actors to buy the state law. iny enumerated powers. i think they admitted that. the court does not have to answer that question by our read