Alito Reignites Fetal Rights Debate in Idaho Abortion Case

The Supreme Court justice who authored the Dobbs decision that overturned Roe v. Wade threw himself into the debate on Wednesday about 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 Department of Justice 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 abortions and the state has set its own standard: a complete ban on abortions except when necessary to save a pregnant woman’s life, but not to prevent serious risks to her health.

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

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

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

“The hospital must stabilize the threat to the fetus, and it seems that the simple meaning is that the hospital must try 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 the duty to protect “the interests of the fetus.”

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

Congress amended the law to add the phrase “unborn child” to expand protections for pregnant people and ensure that women receive the treatment they need, Prelogar argued.

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

“Otherwise, hospitals would have no obligation to treat it, and Congress wanted to fix that,” he 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 as a nationwide ban on abortion. 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 their sympathy for the personality of the fetus. This was a major motivating part of the efforts to overturn Roe v. Wade,” said Leah Litman, a professor at the University of Michigan Law School.

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

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

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

Abortion rights advocates said Alito has been laying the groundwork for federal fetal personhood since his opinion in Dobbs, although he did not take an explicit position on the issue.

“According to the dissent, the Constitution requires states to consider that the fetus lacks even the most basic human right: to live, at least until it has passed an arbitrary point in pregnancy. Nothing in the Constitution or our nation’s legal traditions authorizes the Court to adopt that ‘theory of life,’” he wrote.

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

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

“I don’t know if the Court wants to do this, like, immediately, two years after Dobbs, in the period immediately before the election,” he said. “I think the strategy is, in addition to just calling for full constitutional fetal personhood, why not do some things that will move us toward 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 looks at the personality of the fetus or recognizes these issues or excludes pregnant people from the protection of federal law. “We know that’s what these extremist anti-abortion politicians are pushing and they’re not going to stop,” he said.

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

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

Turner said it was not the state’s position for EMTALA to ban abortions, 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 very strange if Congress expressly amended EMTALA to require care of unborn children…and yet also mandated termination of pregnancy for unborn children,” Turner said.