Tuesday, July 02, 2024

Moyle and Abortion’s New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs

Guest Blogger

Reva Siegel & Mary Ziegler 

In this post, we discuss the Supreme Court’s most recent abortion decision in Moyle v. United States, in which a splintered Court addressed emergency obstetric litigation under federal and state law. We illuminate the social-movement conflicts shaping debate in Moyle, and we show that these struggles turn partly on a constitutional question that was never raised in Moyle or even Dobbs itself: Is there a history-and-tradition right to healthcare access after Dobbs?

We report on a new paper, Abortion’s New Criminalization, that addresses this critical issue. We uncover a significant body of historical evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law. We identify thick customary understandings acted on by legislators, doctors, prosecutors, and prosecutors that afforded physicians considerable discretion to protect health and life in accordance with their good-faith understanding and professional norms. Rather than restate our criticism of Dobbs’s approach to history and tradition, or the levels-of-generality moves Dobbs employed to reverse Roe, we simply ask whether Dobbs’s reasons for overturning Roe identify criteria for making rights claims under the liberty guarantees of federal and state constitutions. We read Dobbs’s history-and-tradition rationale for overturning Roe as providing a basis to limit laws criminalizing urgently-needed healthcare access—rejecting on grounds of doctrine and principle an originalist reading of Dobbs advanced by Professor Stephen Sachs that restricts the Fourteenth Amendment’s meaning to rights recognized as rights at the time of the Amendment’s ratification.

In recent months, these questions have taken on increasing urgency.  Horror stories facing patients in life-threatening emergencies have become all too common: physicians in Idaho report increasing number of patients air-lifted to other states or turned away from emergency rooms, exacerbating a physician shortage that already plagues pregnant patients in the state. In cases such as Zurawski v. State, state courts have rejected state constitutional challenges to the narrow life and health exceptions in abortion bans, while others have found narrow rights to protect life or health that provide at best uncertain protection for providers.

The Biden Administration attempted to address this crisis by issuing guidance interpreting the Emergency Medical Treatment and Labor Act as preempting certain narrowly drawn state bans—and later, by filing suit against Idaho, arguing that EMTALA preempted its Defense of Life Act. In Moyle v. United States, the Supreme Court had reached out to intervene in the case, allowing Idaho’s law to go into effect and evincing skepticism of the Biden Administration’s position. But last week, the Court reversed course and dismissed Idaho’s petition as improvidently granted, reinstating the district court’s injunction permitting certain emergency terminations and allowing litigation to continue in the lower courts.  

The Court’s decision in Moyle will not resolve the health crises created by Dobbs, but it does show us how obstetric care under abortion bans reflects the deep social-movement fractures of the post-Dobbs era. In Moyle, the Court’s three liberal justices emphasized the perspective of medical science: that abortion is an ordinary and valuable form of healthcare, especially in cases of obstetric emergency. Justice Jackson, for example, spoke out on behalf of the “pregnant people experiencing emergency medical conditions [who] remain in a precarious position following the Court’s decision.” These views are shared by most Americans: A majority of the minority who say abortion should be against the law nonetheless believe that Americans should have access to the procedure in obstetric emergencies.

Yet a vocal minority of Americans reject Jackson’s view and question whether abortion is ever medically necessary. For some, that means terminations needed to save a woman’s life are not abortions—and for others that means pregnancy should never be terminated, no matter the consequence. The conservative Justices divided over this question in Moyle.

In a concurring opinion agreeing that the Court should not have granted Idaho’s petition for certiorari, Justices Barrett, Kavanaugh, and Roberts channeled longstanding antiabortion talking points suggesting that health exceptions often serve as a loophole for abortion on demand, emphasizing the solicitor general’s affirmation that EMTALA would never guarantee emergency access in cases of threats to mental health; yet these Justices who now occupy the conservative Court’s center did seem to affirm that “EMTALA requires stabilizing care to prevent ‘serious jeopardy’ to the woman’s health,” and to that extent might constrain enforcement of Idaho’s ban.

In striking contrast,  Justices Alito, Thomas, and Gorsuch would go further, reading the mere mention of  “unborn child” in EMTALA as evidence that federal would never preempt abortion bans like Idaho’s that lack protection for severe threats to a pregnant patients’ health  These justices  interpreted the mere mention of the “unborn child” in the statute as expressing Congress’s decision to prioritize the needs of the unborn patient at the expense of the health and even life of the pregnant patient.

This reading of (or into) the statute is a remarkable window on the meanings of fetal personhood to many in the antiabortion movement today.  Justice Alito draws inferences about fetal-protective preemption in EMTALA without ever discussing how the statute itself explains concerns about unborn life in hospital emergency rooms. In 1989, “after reports that some hospitals were refusing to care for uninsured women in labor” “Congress expanded EMTALA to specify how it included people who were pregnant and having contractions.”  Alito, Thomas, and Gorsuch never mention Congress’s concern with hospitals that were dumping uninsured patients who arrived at the emergency room in the midst of delivery. Instead, Alito’s dissent argues that the mere use of the term “unborn child” in EMTALA, without reference to the context of emergency room deliveries in which it arises creates “express protection of the unborn child” that negatives concern for the wellbeing of pregnant patients.

We count six Justices on the Supreme Court who are skeptical about law protecting pregnant patients in health crisis. But there also seem to be six Justices who recognize that those who are pregnant may face conditions threatening severe injury or even threats to their life.

In a new paper, we ask the unasked constitutional question in Moyle. Do federal or state constitutions impose any limits on a government’s prerogative to obstruct a pregnant patient’s access to urgently needed health care?

In Abortion’s New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term, just posted on SSRN, we show that before Roe access to urgently needed health care during pregnancy was protected against criminalization as it now is not. And we ask whether under Dobbs, this departure from tradition can support rights claims. Resolving this question requires considering how federal and state courts will conduct Dobbs’s history-and-traditions analysis in this case and others. We identify a path, grounded in history-and-traditions analysis as well as our own understanding of the American constitutional order, that diverges from an originalist reading of Dobbs that Professor Stephen Sachs has advanced.

Dobbs claimed to authorize a return to traditions that Roe disrupted. On that view states with restrictive bans like Idaho and Texas are continuing a long American tradition of banning abortion. In fact, the criminal law regime emerging post-Dobbs prevents doctors from addressing urgent health needs of pregnant patients in ways that bans before Roe did not. These developments could well spread beyond the regions where they are currently concentrated, especially if conservatives in a potential second Trump Administration follow through with their threat to apply the Comstock Act claiming that the nineteenth-century postal obscenity law is a no-exceptions national abortion ban.

We have uncovered a significant body of evidence showing that the nation has long had a tradition of exempting at least some forms of health care from criminalization. We have shown that this tradition involved much more than legislative inaction; it demarcated quite self-conscious limits on state action that were reiterated by text, implication, and custom across jurisdictions and over time. Doctors, legislators, prosecutors, and judges collaborated in protecting from criminalization under abortion bans the conduct of those who cared for patients facing urgent threats to life and health.

We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition could guide interpretation of the Constitution’s liberty guarantees to protect against criminalization urgently needed health care for pregnant patients, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs, and have begun to employ it under their own state constitutions.

We engage with the originalist reading of Dobbs offered by Professor Stephen Sachs, who interprets Dobbs as only protecting rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that this reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status-inequalities on the Constitution’s liberty guarantees.

Debate about history-and-tradition analysis has repeatedly fragmented the Court this Term in cases examining the constitutionality of the Consumer Financial Protection Bureau and the relationship of First Amendment and trademark law. Disagreement about the role of history and tradition dominated in United States v. Rahimi on the Second Amendment and Department of State v. Muñoz on unenumerated rights. Dobbs envisions history as a constraint on otherwise free-wheeling substantive due process jurisprudence. Whether and to what extent history and tradition analysis constrains judges, as some on the Court suggest, can be seen in how such the framework applies in practice. By endeavoring to apply Dobbs and to answer some of Dobbs’ many unanswered questions, we show the discretion this analysis affords judges and how it requires judges to identify the traditions and values that define our constitutional order.

Sachs speaks of “rules imposed by the past.” But as Justices Barrett and Sotomayor recognized in Vidal, the past does not call on the Justices to adopt a history and tradition standard. Our forebears do not tell us whether or how to apply such an approach, or which historical periods to consider, or whose voices or practices are worthy of recognition as we look back and try to ascertain our history and traditions as a people.

The public is well aware that the Justices decide these questions today based on values and principles to which they are expressly or implicitly committed. And the public is alarmed by the way that ban states are treating pregnant patients with urgent health needs. America’s eyes are on the Court. 

Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. You can reach her by e-mail at

Mary Ziegler is Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law. You can reach her by e-mail at


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