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 reva.siegel@yale.edu.
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
mziegler@ucdavis.edu.