Tuesday, December 5, 2023
Good afternoon, Here’s the agenda today: UP FIRST: SCOTUS weighs legality of medically necessary abortions
CATCH UP: Uncertainty persists over US aid to Ukraine — Dylan Scott, senior correspondent |
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Two new Supreme Court cases ask if there’s a right to medically necessary abortion |
Sha Hanting/China News Service/VCG via Getty Images |
Anti-abortion state officials are asking the US Supreme Court to overturn a person’s right to a medically necessary abortion as is currently required under federal law.
Two lawsuits, one brought by Idaho Attorney General Raul Labrador and the other by Idaho’s Republican legislature, target the federal Emergency Medical Treatment and Labor Act (EMTLA), a cornerstone of the US health care system.
The act is a national mandate stipulating that if a person shows up at a hospital’s emergency room with a medical emergency, the hospital must treat them — regardless of the patient’s ability to pay.
That federal requirement could be read as dictating that emergency rooms have to provide abortions when medically necessary, even if the procedure is otherwise banned under state law. Idaho Republicans, however, want the Court to decide that those abortions should not be permitted. The state banned abortions in all stages of pregnancy, with exceptions for rape, incest, and saving the life of the pregnant person, after Roe v. Wade was overturned.
Idaho’s exceptions don’t fully align with EMTLA’s protections; while a medical situation endangering the life of the pregnant person would count as a medical emergency, the act doesn’t limit medically necessary procedures to life-or-death situations. It requires the hospital to offer treatment to the patient if the person’s health is in serious jeopardy, if there is a risk of serious impairment to their bodily functions, or if there is serious dysfunction of any body part or organ.
Imagine this scenario: A pregnant patient walks through the emergency room doors with an emergency that is not likely to kill the person but could irrevocably damage their uterus. Under the plain text of EMTLA, Vox’s Ian Millheiser writes, the hospital would be required to perform an abortion to prevent that loss of bodily function if the person desires it. Such a procedure would be illegal under Idaho law, however.
- Idaho’s case rests on two arguments about the EMTLA. One, that it’s invalid because federal employees legally cannot have control over the practice of medicine and, two, that the law’s wording requires hospitals to also stabilize a person’s “unborn child” if they are in peril during an ongoing medical emergency.
- But there are clear flaws in the state’s legal theory, the Biden administration counters.
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First, the provision about controlling the practice of medicine applies to federal employees, not to Congress, which has written all kinds of laws over the years concerning the provision of health care.
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Second, the hospital is not required to perform an abortion against a patient’s wishes. The law says the hospital must offer treatment to stabilize the patient. So in the tragic scenario when both the pregnant person and fetus are at risk, the hospital is supposed to explain the risks and benefits of different treatment options to the patient (or their family) and then follow the decision that the patient makes.
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The Constitution makes these “easy cases,” Ian writes. The US Constitution dictates that in situations where federal law and state law conflict, as appears to be the case with Idaho and EMTLA, the federal statute overrides the state’s policy.
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Nothing can be taken for granted with SCOTUS and abortion, however. A lower federal court initially ruled that EMTLA must be enforced for medically necessary abortions, but a panel of Trump-appointed appeals judges briefly stayed that decision before being reversed. The question now, Ian concludes, is whether the justices will follow the letter of the law.
Read the rest of Ian’s analysis of the newest SCOTUS abortion cases here. |
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US aid to Ukraine looks like it’s in jeopardy |
Marek M. Berezowski/Anadolu via Getty Images |
The White House warned Congress that US funds to support Ukraine in its war against Russia are running out — but Republicans aren’t budging. The standoff imperils any future American assistance nearly two years into the conflict.
Ukraine’s counteroffensive against Russia, which began this summer, has largely stalled, with the two sides increasingly entrenched. The United States has put more than $110 billion behind the war effort, but a senior White House official wrote in a letter to Congress that a failure to appropriate more funding would “kneecap” Ukraine and could lead to Russian military victories as Putin’s government continues to pour men and equipment into the battle.
- The Senate is supposed to vote on $61 billion in additional support for Ukraine this week. The new funding is part of a larger package that includes more money for Israel in its war against Hamas. Ukrainian President Volodymyr Zelensky is slated to speak to senators remotely in a classified briefing ahead of the vote.
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But Republicans say they won’t back more Ukraine funding without border security provisions. The House majority, under the leadership of its new speaker, Mike Johnson, has dug in against additional funding without border control sweeteners.
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It’s not clear if a Ukraine bill can pass. As of Tuesday morning, according to Punchbowl News, the expectation on Capitol Hill is the Senate bill will fail on a procedural vote on Wednesday. The question is what happens next. Senate Republicans appear to be on board with a border security-for-Ukraine funding trade but, for the time being, there is no deal on such a trade.
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The reality on the ground in Ukraine may be more complicated than the political rhetoric. The US is still sending $100 million in arms and ammunition every week and has $4.8 billion more to spend on hand that they expect will last the winter. But with no resolution to the war in sight, there will inevitably come a point when Ukraine needs more assistance — and it’s unclear if the US will be willing to provide it.
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🗣️ “The civil rights of children is at stake, because it’s more likely it’s going to be Black kids and kids with disabilities who are subjected to all kinds of biases that deny them an educational opportunity.” |
— Daniel Losen, senior director for the education team at the National Center for Youth Law, on the disturbing trend of schools sending students to the emergency room for behavioral issues. [AP] |
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Increased attention on Israeli accounts of sexual violence during the October 7 attacks. Anecdotes of mutilated bodies and telltale signs of rape are emerging from people who were eyewitnesses to the Hamas assault and its aftermath. Israeli investigations have been hampered by the chaos in the immediate wake of the attacks and the ongoing conflict. The UN women’s rights agency has also been criticized for not speaking out about the issue. [Reuters]
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The vicious cycle of a warming planet and more air conditioning use. With global temperatures rising, it should be no surprise that people are using air conditioning more often. But therein lies a bitter irony: Electricity consumption for AC could double by 2050, which could lead to more greenhouse gas emissions, which could in turn lead to further temperature increases. [NYT]
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A new generation of flu vaccines? The flu vaccines we deploy every year are often not very effective, even if they are still better than nothing. Pharmaceutical companies are hoping the mRNA tech that gave us remarkably effective Covid-19 vaccines could be harnessed to fight the flu. But some experts are skeptical, given how politicized mRNA vaccines became during the pandemic and the side effects that some people have experienced with the Covid-19 shots. [STAT]
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