Alito reignites debate over fetal rights in Idaho abortion case

The Supreme Court justice who authored the Dobbs decision that overturned Roe v. Wade jumped headlong Wednesday into the debate over whether a fetus has the same rights as a person.

Abortion rights advocates were concerned about arguments that the case over whether Idaho’s abortion ban violated a federal emergency care law could be used to advance the fight for fetal rights.

The Justice Department argued that the Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that receive Medicare funds to provide stabilizing treatment to a patient in an emergency, even if that treatment is an abortion.

Idaho said the law does not mention abortion and that the state has set its own standard: a total ban on abortion except when necessary to save a pregnant woman’s life but not to prevent serious risks to her health.

As the Supreme Court grappled for the first time with the consequences of a state abortion ban since it overturned Roe v. Wade in 2022, Justice Samuel Alito appeared to endorse the idea that a fetus needs the same “stabilizing treatment” as a pregnant person.

Conservative justice focused on the law’s reference to an “unborn child.”

“Isn’t that a strange phrase to put in a statute that imposes a mandate to perform abortions?” Alito asked Attorney General Elizabeth Prelogar.

“The hospital must stabilize the threat to the unborn child, and it seems the clear meaning is that the hospital must attempt to eliminate any immediate threat to the child, but performing an abortion is the antithesis of that duty,” Alito said, adding that the hospital has a duty to protect “the interests of the unborn child”.

Prelogar countered that Alito’s reading of the statute was “erroneous” and the hospital only has the duty to stabilize pregnant women.

Congress amended the law to add the phrase “unborn child” in order to expand protections for pregnant people and ensure a woman received the treatment she needed, Prelogar argued.

“Congress wanted to be able to protect her in situations where she was suffering some kind of emergency and her own health was not at risk, but the fetus could die,” Prelogar said, in cases such as an umbilical cord prolapse in the cervix. where the fetus is in danger but the woman is not.

“Otherwise, hospitals would have no obligation to treat her, and Congress wanted to fix that,” she said.

Anti-abortion groups have long argued that life begins at conception, and some, such as the Heritage Foundation, have promoted views that the 14th Amendment can be interpreted to ban abortion nationwide. Granting a fetus the same rights as a person would mean that abortion for any reason is murder.

“It is not surprising to hear some of the judges express sympathy for the fetal personality. This was a significant driving part of the efforts to overturn Roe vs. Wade. Wade,” said Leah Litman, a professor at the University of Michigan Law School.

“This theory would simply radically reshape the health care and reproductive rights landscape as we know it, because it would just mean no abortions anywhere in the United States, period, and it would also put other forms of reproductive care at risk,” Litman said.

The idea of ​​fetal personhood gained traction when Roe was overturned, but dozens of states consider the fetus a person at some point during pregnancy.

At least 19 states have extremely broad language about personhood in their laws or otherwise define “person” to include a fetus or “unborn child,” according to a report from the liberal organization Pregnancy Justice.

Abortion rights advocates said Alito has laid the groundwork for federal fetal personhood since his opinion in the Dobbs case, although he has not taken an explicit position on the issue.

“According to the dissent, the Constitution requires States to consider a fetus as lacking even the most basic human right – to live – at least until an arbitrary point in the pregnancy has passed. Nothing in the Constitution or our Nation’s legal traditions authorizes the Court to adopt this ‘theory of life,’” he wrote.

The court also sidestepped the issue a few months after Dobbs, when it declined to hear a case that asked justices to rule on whether a fetus has constitutional protections.

Litman said the justices could be taking incremental steps toward protecting fetal personhood, essentially pushing the law in that direction rather than stating it outright.

“I don’t know if the Court wants to do this, like, immediately, two years after Dobbs, on the eve of an election,” she said. “I think the strategy is, beyond just asking for full constitutional fetal personhood, why not do some things that get us to that end.”

In a call with reporters, Alexa Kolbi-Molinas of the American Civil Liberties Union’s Reproductive Freedom Project said fetal personhood is the goal of conservatives.

“Whether or not we see a decision in this case that discusses fetal personhood or recognizes these issues or excludes pregnant women from the protection of federal law, we know that this is what these extremist anti-abortion politicians are pushing for and they are not going to do it. stop,” she said.

During Wednesday’s arguments, it wasn’t just Alito asking about the “unborn child” language in the law.

Justice Neil Gorsuch asked Idaho lawyer Joshua Turner what to make of EMTALA’s definition of “individual” to include both the woman and the fetus.

Turner said it was not the state’s position that EMTALA prohibit abortion, because in some states abortion may be allowed as a stabilizing treatment.

But he said adding “unborn children” to the law was deliberate.

“It would be a very strange thing if Congress expressly amended EMTALA to require care for unborn children… and yet mandated the termination of unborn children,” Turner said.