A divided Supreme Court on Wednesday weighed the near-total ban on abortion in the state of Idaho, in the northwestern United States, to determine whether it conflicts with federal law on medical emergencies.
It is this same institution dominated by conservatives which pulverized, in June 2022, the federal guarantee of the right to abortion, breaking decades-old jurisprudence.
The latest case is being particularly closely followed because it could have an impact on hospitals across the country. Abortion is also one of the themes at the heart of the campaign for the presidential election on November 5.
A sign that the debate remains lively throughout the United States, the Arizona House of Representatives voted on Wednesday to abolish an 1864 law banning almost all abortions, deemed applicable two weeks ago by the Supreme Court of this electorally key state.
As for Idaho, it is one of the most severe states in terms of voluntary termination of pregnancy (abortion): abortion is prohibited there with rare exceptions, such as in cases of incest or danger of death. imminent for the pregnant woman.
Outside of this framework, anyone performing an abortion risks up to five years in prison.
Democratic President Joe Biden’s administration has asked the courts to block the legislation, arguing that it violates a federal law on medical emergencies because it does not provide an exception in cases of “serious danger to the health” of the pregnant woman.
“Impossible situation”
On Wednesday, the Court’s three progressive justices, Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor, pressed questions on the Idaho state representative, sometimes sharply reframing him and using harrowing women’s cases as examples. whose health would be threatened but not necessarily their lives.
Among conservative judges, some were skeptical of the government’s arguments.
“How can you put restrictions on what Idaho can criminalize, simply because hospitals in Idaho have chosen to accept [des fonds fédéraux] ? » asked one of them, Samuel Alito.
The same magistrate also questioned the use of the expression “unborn child” in federal legislation, suggesting that this meant that “the hospital must try to eliminate any immediate threat to the child” , and that therefore “performing an abortion is contrary to this duty”.
Other conservative judges, such as Amy Coney Barrett, however, expressed doubts, with the latter even saying she was “shocked” by part of the argument from Idaho Representative Josh Turner.
Elizabeth Prelogar, the Biden administration’s legal advisor, said that “today, doctors and women in Idaho find themselves in an impossible situation.”
“If a woman arrives at the emergency room and her health is seriously threatened, but she is not yet in danger of death, then doctors must either delay treatment and let her condition deteriorate, or airlift her out of of the State so that she can receive the emergency care she needs,” she said.
Demonstrations
The federal law, called EMTALA, requires hospitals affiliated with the government health insurance Medicare to provide emergency care to people who need it.
For Idaho, a rural and conservative state, this care does not necessarily include abortion, which the federal government disputes.
A federal judge in Boise, the capital of Idaho, issued a preliminary injunction in August 2022 that partially suspended that state’s law, saying it put doctors in a delicate position.
But in January, the U.S. Supreme Court agreed to temporarily reinstate it while it considers an appeal against the measure.
On Wednesday, in front of the Supreme Court in Washington, a few hundred pro-abortion demonstrators brandished signs proclaiming “Abortion saves lives.”
Around ten anti-abortion activists confronted them for a time.