Idaho Abortion Case Part 2: Does "Unborn Child" Mean Categorically Anti-Abortion?

In an essay here on the blog last week, I discussed Justice Alito's suggestion during the oral argument in the Idaho abortion case that Congress lacks the power to preempt state law by imposing conditions on the receipt of federal funds by non-state actors. As I explained, he appears to be onto something as a theoretical matter, although even if he's right, the federal statute at issue in the case--the Emergency Medical Treatment and Active Labor Act (EMTALA)--would still validly preempt Idaho's abortion restrictions where they conflict because EMTALA is valid under the Commerce Clause, not just the Spending power. In last week's essay, I also said that I would write a Part 2 of my analysis of the case discussing another suggestion that Justice Alito made: that because EMTALA uses the phrase "unborn child," it would be contrary to Congress's intent to construe it to require covered entities to make abortion an available medical option. Today's essay is that Part 2 (delayed by a few days due to other breaking news covered on the blog last week).

The key provision of EMTALA uses the term "unborn child" in four places. The most important one is in its definition of a medical emergency for which covered hospitals are required to provide stabilizing medical treatment or, in certain circumstances, transfer. It states:

(1) The term “emergency medical condition” means—

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy . . . . (emphasis via boldface added).

Relatively late in the oral argument, Justice Alito asked Solicitor General Prelogar a question regarding "EMTALA's reference to the woman's 'unborn child.' Isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase 'unborn child'?"

Before I come to SG Prelogar's answer, it's worth unpacking what I take to be the logic behind the question. It goes like this: "Unborn child" is a phrase that people who oppose abortion use to describe a fetus (or even an embryo) in utero. The Congress that put that term into EMTALA was therefore opposed to abortion and thus would not have intended the statute to require abortions under any circumstances.

In response, SG Prelogar explained that Congress added the contested language in 1989 because some hospitals were not providing emergency care to pregnant women who presented with conditions that posed a grave threat to the fetus. The point of the language, in other words, was to expand the scope of covered conditions, not to eliminate any pre-existing legal obligation to provide care, including abortions, where medically appropriate.

That's fair as far as it goes, but it doesn't really grapple with Justice Alito's point. Why, he wanted to know, did Congress use the term "unborn child" to express the obligation to provide emergency care for conditions that endanger a fetus but not the health of the pregnant person? Doesn't the use of that particular language suggest that the Congress that enacted EMTALA was opposed to abortion and thus wouldn't want it construed to require abortions?

SG Prelogar offered an answer to those questions, but it was somewhat buried in the back and forth with Justice Alito, so I'll try to spell it out in some more detail before offering two additional answers of my own. In answer to one of Justice Alito's follow-up questions, SG Prelogar said that in adding an obligation on hospitals to provide treatment when there was an emergency threatening a fetus, Congress did nothing to "displace[] the independent preexisting obligation to treat a woman who herself is facing grave life [or] health consequences." The idea, I take it, is that the pre-1989 statutory language imposed an obligation to offer emergency medical treatment that would sometimes include abortions, and that by expanding coverage but not in any way amending the operative provisions that entailed an obligation to offer abortions, the 1989 amendment left that obligation intact. SG Prelogar's argument thus relies on the general principle disfavoring repeals by implication.

I would add that the entire premise of Justice Alito's questions is at odds with textualist principles of statutory interpretation that the Court, including Justice Alito, has embraced in recent decades. Let us assume for the sake of argument that the 1989 Congress that put the words "unborn child" into EMTALA opposed abortion in all circumstances. (I'll challenge that assumption momentarily.) Let us even assume that the Congress that added the 1989 amendment wanted it to rescind the pre-existing obligation to provide abortions. Even so, by not amending the language that entailed that obligation, Congress failed to carry out its intention through the amendment. As Justice Scalia wrote for a unanimous Court in 1998 in Oncale v. Sundowner Offshore Services, Inc., "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."

Now I want to challenge a more fundamental premise of Justice Alito's question: his assumption that use of the term "unborn child" is inconsistent with the intention of preserving the option of abortion in cases of medical emergencies. As a preliminary matter, it's simply not true that the term is inconsistent with believing that there should be a right to abortion. A very familiar feminist argument contends that even assuming fetal personhood--i.e., that a fetus is an unborn child--there should nonetheless be a right to abortion. I don't expect Justice Alito to agree with Judith Jarvis Thomson's A Defense of Abortion, but one would hope that he has at least encountered it. If he had, and if he had thought about the matter for even a few seconds, he would have realized that many members of Congress could have believed simultaneously in the personhood of fetuses and in a right to abortion.

Moreover, even if one thinks that the use of the phrase "unborn child" is a kind of ideological code for anti-abortion, opposition to abortion does not necessarily entail opposition to all abortions. No one was arguing in the Idaho case that EMTALA codifies Roe v. Wade but uses the term "unborn child." The SG's argument is that such language is consistent with emergency medical abortions. Put differently, someone could oppose abortion in general--and thus favor including ostensibly ideologically anti-abortion terms like "unborn child" in legislation--but still think that there should be a legal right to abortion under some circumstances.

Indeed, the very Idaho abortion ban at issue in the case uses the term "unborn child" but also specifies that it permits some abortions--those "undertaken for preservation of the life of a pregnant patient," to end a pregnancy resulting from rape or incest, or to end a molar or ectopic pregnancy (defined by the statute not to constitute abortion at all). There is thus nothing inherently contradictory about a legislature  using the term "unborn child" in a statute but also believing in the permissibility of some abortions. And if that's true of the Idaho legislature, it's also true of Congress. The fact that Congress in EMTALA favored somewhat broader abortion availability than the Idaho legislature did--including protecting against emergency threats to health and not just threats to life--does not in any way alter the basic principle.

Put simply, it is possible to think--indeed, millions of Americans (including me) think--that a fetus is at some stage of pregnancy an "unborn child" but that nonetheless a substantial health risk arising out of the continuation of the pregnancy justifies a right to choose abortion. Justice Alito is thus reading his own--evidently extreme--anti-abortion views into EMTALA.