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Abortion rights supporters gather outside the Capitol, Wednesday, April 17, 2024, in Phoenix. (AP Photo/Matt York) Matt York/AP

Two Conservative Justices Said Federal Law Might Give Fetuses Rights

Justice Alito said it was “odd” to add the term “unborn child” in a “statute that imposes a mandate to perform abortions” during arguments over a case that could have sweeping implications for emergency abortions in states with near-total bans.

As the Supreme Court heard arguments in Idaho v. United States, a case that has sweeping implications for whether emergency physicians are able to provide abortions when a patient’s life is in danger, two conservative justices implied they believe federal law gives rights to fetuses.

The case centers around the Emergency Medical Treatment and Active Labor Act, or EMTALA, a federal law which the Biden administration says requires doctors to provide emergency abortions. While the questions the justices are evaluating do not relate to fetal personhood, the law itself contains the words “unborn child” — a popular term used by the anti-abortion movement — four times. Conservative Supreme Court Justices Samuel Alito and Neil Gorsuch both questioned that language, suggesting that the law should not allow abortions because the fetus must be considered when deciding treatment.

In an emergency situation, “the hospital must stabilize the threat to the unborn child, and it seems that the plain meaning is that the hospital must try to eliminate any immediate threat to the child, but performing an abortion is antithetical to that duty,” Alito said.

Alito said that it was “odd” to add the term “unborn child” in a “statute that imposes a mandate to perform abortions.” He later went as far as to suggest that since EMTALA was signed into law by President Ronald Reagan, then, it could be inferred that the law never intended to consider abortion as stabilizing care. (That argument was specifically made in an amicus brief submitted by Advancing American Freedom, former Vice President Mike Pence’s conservative think tank.)

Gorsuch was the first justice to bring up the “unborn child” language, asking Joshua Turner, the chief of constitutional litigation and policy for the Idaho attorney general, “What do we do with EMTALA’s definition of ‘individual’ to include both the woman and as the statute says, the ‘unborn child’?”

“It’d be a strange thing for Congress to have regard for the unborn child, and yet also be mandating termination of unborn children,” Turner responded.

The justices were mixed on whether EMTALA preempts Idaho’s abortion ban, so it’s unclear how the court could rule in the case. On fetal personhood, specifically though, legal experts say that while Gorsuch and Alito were the only conservatives to bring up the “unborn child” language, that does not mean that other justices are not interested in exploring the idea.

Andrew Twinamatsiko, a director of Georgetown Law School’s O’Neill Institute Health Policy and the Law Initiative, told NOTUS that the fetal personhood argument “is taken out of the context of EMTALA.”

The term “unborn child,” he said, is used in the law specifically when addressing when a person is in “active labor,” and “labor isn’t the entire pregnancy, like, you know, it’s a day or two before the uterus is evacuated.”

Justice Ketanji Brown Jackson pointed to that during her line of questioning, specifically responding to Alito and saying that “unborn child” was not written in EMTALA in a way that would specifically exempt abortion from the law.

“Justice Alito has talked about some of the references to unborn child, but none of them read like an exemption,” Jackson said. “If we’re looking for something clear, we would need to see, I would think, the clear statement that Congress for you not to have to provide an abortion pursuant to the mandate of providing stabilizing care.”


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Conservatives, though, did seem to agree with Alito’s interpretation.

“EMTALA is very clear when it comes to stabilizing care, that stabilizing care applies individually, both to the mother of the child and to the unborn child. When it comes to transferring patients out of the hospital, they must transfer those patients with the safety and the health in mind of the mother and of the unborn child,” Gabriella McIntyre, legal counsel for the conservative law firm Alliance Defending Freedom, the group representing Idaho in the case, told NOTUS outside of the Supreme Court.

Legal experts say that this specific case would not necessarily lead to an overarching ruling granting fetuses constitutional rights, but it’s possible that an opinion could say that a fetus could be considered a person under EMTALA and open the door to more legal fights down the road.

“There’s a possibility that they could actually hold that EMTALA can’t recognize abortion because it treats an unborn child as a person, which again, wouldn’t be for the purposes of the Constitution, it would be like this one context,” said Mary Ziegler, a professor of law at the University of California, Davis, who specializes in abortion issues.

However, such an interpretation, Ziegler said, could potentially lead to more statutes recognizing a fetus as a person that would eventually lead to the justices deciding that “the Constitution should be brought into line with that.”

The Supreme Court is expected to issue a decision on this case in June.

Oriana González is a reporter at NOTUS.