Justice Samuel Alito revived the legal debate about fetal personhood this week during oral arguments for the Idaho abortion case currently before the Supreme Court.
The Idaho case deals with whether Idaho emergency room doctors are required by federal law to perform abortions to stabilize pregnant women in medical crises. Idaho bans all abortions except to save the life of the mother or in cases of rape and incest.
The case is the first time the high court has considered whether a state abortion ban is constitutional since the demise of Roe v. Wade.
In the Idaho case, the Biden administration is arguing that Idaho’s abortion ban flies in the face of a federal law, the Emergency Medical Treatment & Labor Act, known as EMTALA, which requires hospitals receiving federal funds to provide patients with stabilizing care. Hospitals that flout the law are at risk of losing their Medicare funding.
Meanwhile, Idaho officials counter that the Biden administration is simply trying to undermine the state’s abortion ban.
Alito drew the court’s attention to the federal law’s reference to the “unborn child.”
“Isn’t that an odd phrase to put in a statute that imposes a mandate to perform abortions?” Alito asked Solicitor General Elizabeth Prelogar.
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“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.
The Justice Department pushed back on Alito’s argument, saying hospitals only have a duty to stabilize pregnant women, not their unborn children.
Prelogar said Congress amended the law to add the phrase “unborn child” in order to better protect pregnant women.
“Congress wanted to be able to protect her in situations where she’s suffering some kind of emergency and her own health isn’t at risk, but the fetus might die,” she said.
The focus on fetal personhood was a concern abortion supporters had before the Idaho case reached the high court — they hoped the case would not be used to advance fetal rights.
The case is being closely watched since the justices’ decision could potentially have broad implications for the more than a dozen states that have enacted strict state abortion bans.
Back in 2022, Alito penned the court’s opinion in the Dobbs case overturning Roe vs. Wade. His opinion sparked speculation about whether he was trying to bring forth the issue of fetal personhood.
“Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” he wrote in that opinion. “The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed.”